Employment Law Report
National Defense Authorization Act Expands Military Leave Provisions of FMLA
On October 28, 2009, President Obama signed the National Defense Authorization Act of 2010, which made several key amendments to the military family leave provisions of the FMLA:
• The Act expands qualifying exigency leave to cover all eligible family members (spouse, son, daughter, parent, or next of kin) of active-duty service members, rather than just family members of those called up to the National Guard or Reserves
• Qualifying exigency leave is now available to eligible family members of all service members, including those in the regular Armed Forces, who are deployed to a foreign country. Previously, qualifying exigency leave was only available to family members of those called up to the National Guard or Reserves.
• Family members will now be eligible able to take military caregiver leave to care for veterans who served in the regular Armed Forces, National Guard, or Reserves within 5 years of requiring care for a service-related illness or injury. In other words, the eligible caregiver would be able to take up to 26 weeks of leave to care for a veteran for up to five years after the veteran leaves the service. The previous military family leave provisions only allowed such leave to care for current service members.
• The Act also expands military caregiver leave to cover aggravation of a family member’s existing or preexisting injuries in the line of duty while on active duty. The previous military family leave provisions allowed caregiver leave only for serious illnesses or injuries incurred while on active duty.
Regulations to help with carrying out these new amendments are to be formulated by the United States Department of Labor and Office of Personnel Management and the Secretaries of Defense and Veterans Administration. Unfortunately, it is unclear whether these amendments are to be effective immediately, or whether they will become effective upon the issuance of implementing regulations. Nevertheless, employers should review and adjust their FMLA policies to reflect these recent military family leave amendments. The full text and history of the National Defense Authorization Act can be found at: http://www.govtrack.us/congress/bill.xpd?bill=h111-2647.