Publications

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On October 28, 2009, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (Defense Authorization Act for 2010), which expands the military family leave entitlements of the Family and Medical Leave Act (FMLA). As you may recall, these military family leave entitlements were added to the FMLA by the National Defense Authorization Act for Fiscal Year 2008. While it is unclear whether this new piece of legislation is effective immediately or upon issuance of regulations by the US Department of Labor and Office of Personnel Management, below are highlights of the legislation of which you should be aware.

Expands Qualifying Exigency Leave to Include Family of Members of Regular Armed Forces and Eliminates Contingency Operation Requirement

Under the FMLA, an eligible employee must be permitted to take up to 12 workweeks of unpaid, job-protected leave during the designated 12-month period for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is on active duty or has been notified of an impending call or order to active duty. Prior to the passage of the Defense Authorization Act for 2010, an eligible employee could take qualifying exigency leave only when a family member who was a member of the Reserves or National Guard had been called up to active duty or notified of an impending call or order to active duty in support of a contingency operation. Leave was not available for an employee with a family member who was an active member of the Armed Forces.

The Defense Authorization Act for 2010 expands qualifying exigency leave to permit an eligible employee to take FMLA leave for a qualifying exigency related to the deployment of a family member who is an active member 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 those related to contingency operations. Covered active duty now includes instances when a member of the regular or reserve components of the Armed Forces is deployed to any foreign country.

Expands Military Caregiver Leave to Cover Family of Veterans and Aggravation of Preexisting Injuries

Under the FMLA, an eligible employee must be permitted to take up to 26 workweeks of unpaid, job-protected leave during a single 12-month period to care for a covered servicemember (who is the employee’s spouse, son, daughter, parent or next of kin) with a serious illness or injury. Prior to the passage of the Defense Authorization Act for 2010, a “covered servicemember” was defined to include a member of the Armed Forces 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. A “serious injury or illness” was defined to include an injury or illness incurred by the member in the line of duty while on active duty. Leave was not available for an employee with a family member who is a veteran and the definition of “serious injury or illness” excluded aggravation of preexisting injuries incurred in the line of duty.

The Defense Authorization Act for 2010 expands military caregiver leave to permit an eligible employee to take leave to care for a veteran, provided that the veteran was a member of the Armed Forces at any time during the five-year period preceding the date on which the veteran undergoes medical treatment, recuperation or therapy. In addition, the Defense Authorization Act for 2010 expands the definition of serious injury or illness to include an injury or illness 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 in the Armed Forces. With respect to veterans, the definition of serious injury or illness is clarified to include an injury or illness that manifested itself before or after the member became a veteran.

Recommendations to Employers

In response to the expansion of military family leave entitlements, employers should revise their current FMLA policies to reflect the new circumstances in which FMLA leave may be granted, apprise managers and members of Human Resources of the changes to the current law and anticipate the enactment of new regulations interpreting the amendments.

If you have any questions about these amendments to the FMLA or about the FMLA in general, please contact:

Harriet A. Lipkin 

Emmett F. McGee Jr.

Adrianne C. Mazura 

Rick Storms