New Law Expands FMLA’s Military Leave Requirements
November 10, 2009
Todd D. Steenson- Chicago
On October 28, 2009, President Obama signed into law a Defense Department Fiscal Year 2010 authorization bill that expands the Family and Medical Leave Act’s (FMLA) requirements with respect to “qualifying exigency leave” for family of military members and “military caregiver leave.” Specifically, qualifying exigency leave now applies to employees who have family members on active duty military service in a foreign country, and military caregiver leave applies to family members of veterans, not just active duty service members. Although the law does not specify an effective date, it appears to take effect immediately.
Qualifying Exigency Leave
Under the FMLA’s prior qualifying exigency leave provision, employers were obligated to provide up to 12 weeks of unpaid FMLA leave to immediate family members (spouses, parents and children) of members of the Armed Forces Reserves and National Guard who are either on active duty service or called to active duty service in support of a military operation or during a national emergency.
Under the new law, qualifying exigency leave is not limited to family members of reservists or National Guard members called to active duty. Rather, qualifying exigency leave now applies to spouses, parents and children of any member of the armed forces who is either serving in a foreign country on active duty or is called to service in a foreign country.
Qualifying exigency leave is available for a number of reasons and activities, 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 additional activities agreed to by the employer and the employee.
Leave to Care for Wounded Service Members
Under the FMLA’s original military caregiver provisions, eligible family members (spouses, parents, children as well as the nearest blood relative) could take leave to care for a current member of the Armed Forces, National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in out-patient status, or is on the temporary disability retired list for serious injury or illness suffered while on active duty. An eligible employee may take a combined total of 26 workweeks of military caregiver leave in a single 12-month period that begins on the date the employee first uses the leave and ends 12 months later.
The new law extends military caregiver leave to the eligible family members of veterans as well. For purposes of the new law, a veteran is an individual who formerly served in the active military, Naval, or Air Service, and who did not receive a dishonorable discharge. A family member is entitled to leave only if the treatment necessitating the leave occurs within five years after the veteran leaves the Armed Forces.
In addition to expanding military caregiver leave to families of veterans, Congress also expanded the kinds of serious illnesses or injuries that qualify for military caregiver leave generally. Previously, the leave entitlement applied only if the individual suffered the serious illness or injury in the line of active duty and the injury rendered him or her medically unfit to perform his or her military duties. Under the new law, the leave also applies to illnesses or injuries that pre-existed military service but were aggravated by the member’s military service. With respect to veterans, the serious illness or injury must be caused or aggravated by their service and must manifest itself before or after the member became a veteran.
Recommendations for Employers
Employers should update their existing FMLA policies and make sure that employees are aware that they may be entitled to additional leave under the new provisions. It is expected that the Department of Labor (DOL) will revise its required FMLA notice and its FMLA regulations to implement these new provisions. Because the FMLA regulations require that employers include all of the information in the DOL’s notice in their handbook, employers should ensure that their FMLA policies include all of the information in the revised notice.
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