Press Releases
November 04, 2009
FMLA AMENDED BY THE 2010 NATIONAL DEFENSE AUTHORIZATION ACT
The Family Medical Leave Act (FMLA) is undergoing a change yet again. On October 28, 2009, President Obama signed the 2010 National Defense Authorization Act (NDAA) into law. The law contains provisions amending the FMLA's military family leave entitlements that were enacted less than two years ago.
Employers were encouraged to revisit their policies and make necessary revisions after new regulations to FMLA went into effect January 16, 2009. The regulations incorporated two military family leave amendments enacted under the 2008 NDAA—military caregiver leave and qualifying exigency leave.
The 2010 NDAA extends military caregiver leave provisions to family members of veterans and expands exigency leave to family members of the Regular Armed Forces. Employers should again update their FMLA policies to reflect the expanded military family leave rights provided under the 2010 NDAA.
Military Caregiver Leave – 2008 NDAA
Under the 2008 NDAA, which was signed into law by President Bush on January 28, 2008, military caregiver leave was available to care for current members of the Armed Forces, Guard or Reserves. Caregiver leave entitles eligible employees, who are the spouse, son, daughter, parent, or next of kin of covered servicemembers in the Armed Forces, including members of the National Guard or Reserves, to 26 workweeks of leave during a 12-month period to care for the servicemember, who because of a serious injury or illness incurred in the line of duty, is undergoing medical treatment, recuperation, or therapy, otherwise in outpatient status, or is otherwise on the temporary disability retired list.
Military Caregiver Leave – 2010 NDAA
The 2010 NDAA extends the military caregiver leave provisions to veterans. Eligible family members may take leave to care for a veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness and who was a member of the Armed Forces, including a member of the National Guard or Reserves, at any time during the period of five years preceding the date on which the veteran undergoes the medical treatment, recuperation or therapy. Serious injury is expanded to include not only an injury that is incurred in the line of duty but an injury that existed before the beginning of the member's active duty and was aggravated by service in the line of duty while on active duty.
Qualified Exigency Leave – 2008 NDAA
The 2008 NDAA amended the FMLA to provide eligible employees with up to 12 workweeks of leave during any 12-month period for certain qualifying exigencies arising out of the fact the employee’s spouse, son, daughter, or parent (i.e., the covered military member) is on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation. The regulations relating to qualifying exigency leave limited access to the leave to family members of those individuals in the National Guard and Reserves and certain retired members of the Regular Armed Forces, but excluded members of the Regular Armed Forces. Qualifying exigency leave is available to eligible employees to handle various non-medical exigencies, including short-notice deployment; military events and related activities; child care and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and any other event the employer and employee agree is a qualifying exigency.
Qualified Exigency Leave – 2010 NDAA
The 2010 NDAA extends exigency leave to eligible family members of active-duty members in a regular component of the Armed Forces. In addition, the call to active duty or notice of an impending call or order to active duty is no longer limited to "contingency operations." Covered active duty now relates to deployment to any foreign country.
Recommendations
The law takes effect immediately. We anticipate the DOL will revise its regulations and General Notice to incorporate these new military leave provisions. If a covered employer provides its employees with a handbook or other written materials concerning benefits or leave rights, FMLA regulations require such handbook or written materials include the information contained in the General Notice. Employers must update their FMLA policies and written materials to reflect these expanded military family leave rights. In addition, employers should educate managers and supervisors of the additional circumstances under which FMLA leave may be available.
This alert is only a summary of the 2010 NDAA amendments to the FMLA and its implications and is not intended to be legal advice. Please contact Lane & Waterman LLP if you have questions about the FMLA amendments or the FMLA in general or would like assistance in revising or drafting an FMLA Policy.
LANE & WATERMAN LLP
EMPLOYMENT AND LABOR PRACTICE GROUP
- Judith L. Herrmann
- Diane M. Reinsch
- Mikkie R. Schiltz
- Stacey L. Hall
- Wendy S. Meyer
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