Military-Related FMLA Leave Expanded Further
The 2010 National Defense Authorization Act (H.R. 2647) contains what could be termed a "stealth" expansion of the Family and Medical Leave Act (FMLA). Buried in 500 pages of text, Section 565 of the Act makes some significant changes to the military leave entitlements that went into effect earlier this year. A summary of those changes follows:
Qualifying Exigency Leave
"Qualifying exigency leave" covers leave for short-notice deployment, military events and related activities, financial and legal matters, child care and related activities, counseling, rest and recuperation, post-deployment activities, and additional events agreed upon by the employer and the employee. Created in the previous FMLA expansion, this provision was intended to help those family members with imminent situations and obligations where their spouse, parent or child was called to active duty in support of a contingency operation. It was limited to family members of those in the National Guard or Reserves.
The new requirement extends this leave to a member of any regular component of the Armed Forces, in addition to the Guard and Reserves, who is deployed to a foreign country, while removing any requirement that this leave can only be taken in support of a contingency operation. However, the actual leave period, up to 12 weeks of FMLA leave on an annualized basis, has not been altered.
Military Caregiver Leave
The FMLA presently permits eligible employees to take up to 26 weeks of military "service member care" leave in a single 12-month period to care for a service member with a serious illness or injury which was incurred in the line of duty while on active duty. Eligibility for military-caregiver leave has been limited to the family of active duty members.
New provisions in the Act expand the definition of "covered servicemember" to include close family members of veterans who were members of the Armed Forces (including the National Guard or Reserves) at any point in time within five years preceding the date when the veteran undergoes medical treatment, recuperation, or therapy. In addition, H.R. 2647 expands the definition of "serious health condition" for active duty covered servicemembers to include any injury or illness that "existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces." For veterans, the definition further adds that the injury or illness may manifest itself before or after the member became a veteran.
Because the Act does not include an effective date for these changes, employers are advised to proceed as if the changes took effect on October 28, 2009, when President Obama signed the Act into law. The Department of Labor will no doubt revise its regulations to conform to the Act. However, this process may take several months. In the interim, employers are encouraged to revisit their FMLA policies and documentation to make sure they reflect these new requirements.
For additional information on these changes, or any other FMLA issue, please contact Lewis G. Brewer -
or any member of our Labor and Employment Practice Group.
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