Employment Law – Perspectives from the Summit                                                                November, 2009

Overview 

Just as the ink was drying on employers’ revised Family Medical Leave Act (FMLA) policies, Congress has made further amendments to the FMLA.  On October 28, 2009, President Obama signed the Fiscal Year 2010 National Defense Authorization Act, which contains an expansion of recently-created leave provisions for families of military personnel.

Expansion of Military Caregiver and Qualifying Exigency Leave

In 2008, Congress created two new forms of leave entitlement for families of military personnel under the FMLA: military caregiver leave and qualifying exigency leave.  Implementing regulations took effect in early 2009, and since then employers have been working to update their FMLA policies to reflect these new leave entitlements.  Just last month, however, Congress made further amendments to the law.     

·          Military caregiver leave allows FMLA-eligible employees who are family members of a covered servicemember up to 26 workweeks of leave in a 12-month period to care for the servicemember with a serious illness or injury incurred in the line of duty on active duty.  As originally enacted, the law defined “covered servicemember” as a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a “serious injury or illness” incurred in the line of duty on active duty.  What’s New:  Under the legislation signed in October, “covered servicemember” is expanded to include veterans who were a member of the Armed Forces (including the National Guard or Reserves) any time during the 5 years preceding the date on which the veteran undergoes medical treatment, recuperation, or therapy for a serious injury or illness.  In addition, the definition of “serious injury or illness” is expanded to include a serious injury or illness that existed before the covered servicemember’s active duty and was aggravated by service in the line of duty on active duty. For veterans, a serious injury or illness may manifest itself before or after the member becomes a veteran.    

·          Qualifying exigency leave allows FMLA-eligible employees up to 12 weeks of leave due to a “qualifying exigency” arising out of the employee’s spouse, child, or parent being on active duty or being notified of an impending call to duty in support of a contingency operation.  What’s New:  Under the original legislation, family members of those in the Regular Armed Forces were not entitled to qualifying exigency leave.  Lawmakers reconsidered this distinction.  Under the legislation signed a few weeks ago, family members of military service personnel in the Regular Armed Forces are eligible for qualifying exigency leave during the servicemember’s deployment to a foreign country.  Family members of military service personnel in the National Guard or Reserves are eligible during the servicemember’s deployment to a foreign country under a call or order to active duty.

Effective Date

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