ALERT - Amendments to the FMLA’s Military Leave Provisions

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November 11, 2009

On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA) of 2010 into law. Employers should be aware of two important changes the NDAA makes to the Family and Medical Leave Act (FMLA).

Expansion of qualifying exigency leave

The NDAA amends the FMLA to make “qualifying exigency” leave available to the families of all members of the Armed Forces who are deployed overseas.  Qualifying exigency leave permits an employee to take FMLA leave because of a qualifying exigency arising out of the fact that a spouse, son, daughter or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces.

Previously, qualifying exigency leave was available only for the families of members of the reserve components of the Armed Forces and retired members of the Regular Armed Forces or Reserves — but not current members of the Regular Armed Forces — who were deployed in support of a “contingency operation.”  The NDAA amends the FMLA by replacing the “contingency operation” requirement with “deployment … to a foreign country.”  In addition, the NDAA amends the FMLA by making qualifying exigency leave available for the families of current members of the Regular Armed Forces who are deployed to a foreign country.

Expansion of covered servicemember leave

The NDAA further amends the FMLA to expand the availability of “covered servicemember” leave.  Covered servicemember leave allows an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember who suffers a serious injury or illness in the line of duty to take a total of 26 workweeks of leave to care for the servicemember during a single 12-month period.

Before, the FMLA defined the term “covered servicemember” to include members of the Armed Forces, the National Guard, or the Reserves who are either current members or who are on the temporary retired list—but not former members or members who are on the permanent disability list.  The NDAA expands the definition of “covered servicemember” to include “a veteran who is undergoing medical treatment, recuperation or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of five years preceding the date on which the veteran undergoes that medical treatment, recuperation or therapy.”

Consequences for employers

The NDAA’s amendments to the FMLA do not specify an effective date. Therefore, employers should begin complying with the amendments immediately as a precautionary measure until further guidance is provided.

Employers will need to update their practices to account for these changes in the FMLA.  Whether changes to employers’ FMLA policies are necessary will depend on whether the policy in question is specific enough to precisely define the eligibility requirements for qualifying exigency and covered servicemember leave that are affected by the NDAA’s amendments. If so, revising the policy to mirror the NDAA amendments is advisable.

If you have any questions regarding these recent amendments to the FMLA, please contact your Briggs and Morgan attorney or a member of the Labor and Employment Section.

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