On October 28, 2009, President Obama signed into law a Defense Department Fiscal Year 2010 authorization bill that includes language expanding certain provisions of the Family and Medical Leave Act (“FMLA”). These expansions affect the circumstances under which relatives of military service members and veterans may take FMLA leave.  Employers should begin preparing to comply with the new requirements.  

The New FMLA Provisions

Before the current expansion of FMLA rights, an employee eligible for FMLA leave could take up to twelve weeks of FMLA leave during a twelve-month period because of any “qualifying exigency” arising from the employee’s spouse, child, or parent being on active duty or called to active duty in a reserve component of the Armed Forces in support of a military “contingency operation.” (The circumstances constituting a qualifying exigency are described in the November 17, 2008 Kilpatrick Stockton Legal Alert entitled “Department of Labor Issues Revisions to Family and Medical Leave Act Regulations.”) This provision has been changed under the new amendments to the FMLA.  Now, an eligible employee whose spouse, parent, or child is a member of a reserve component of the Armed Forces may take FMLA leave for a qualifying exigency arising from the fact that the reservist is deployed to a foreign country on active duty pursuant to certain statutory provisions. (Not all “contingency operations” now trigger “qualifying exigency” leave.) In addition, the amendments add a new right to take FMLA leave in connection with a qualifying exigency arising from the fact that an employee’s spouse, parent, or child is a member of a regular component of the Armed Forces and is deployed to a foreign country. Thus, “qualifying exigency” leave under the FMLA is no longer limited to the families of reservists.

Additionally, the new FMLA provisions expand the concept of “military caregiver leave.” Before these amendments to the FMLA, an eligible employee could take up to twenty-six weeks of FMLA leave in a “single twelve-month period” to care for a parent, spouse, child, or relative to whom the employee is next of kin when the family member was (1) a member of the regular or reserve Armed Forces who was undergoing treatment, recuperation, or therapy, was in outpatient status, or was on a temporary disability retired list, for a serious injury or illness incurred on active duty. The new FMLA provisions expand this leave right to include care for a service member whose serious injury or illness was incurred before the service member’s active duty but was aggravated by military service in the line of active duty. In addition, the FMLA amendments add a new right to leave to care for a parent, spouse, child, or relative to whom the employee is next of kin when the family member is a veteran undergoing medical treatment, recuperation, or therapy for a “qualifying injury or illness” and the family member was a member of the regular or reserve Armed Forces at any time during the period of five years before the date the veteran undergoes the medical treatment, recuperation, or therapy. Thus, “military caregiver leave” under the FMLA now covers leave to care for certain veterans. Previously, “military caregiver leave” was available only while the service member served in the regular or reserve Armed Forces or was on temporary disability retired status; leave was not available if the service member was a veteran or was placed on the permanent disability retired list.

The new FMLA provisions direct the Secretary of Labor to define what constitutes a “qualifying injury or illness” of a veteran that would trigger the right to “military caregiver leave” for a former service member, and this type of FMLA leave will not be available until the Secretary issues that definition. However, the statutory amendments specify that a qualifying injury or illness must either be incurred in the line of active duty or be a pre-existing condition that was aggravated by military service in the line of active duty. Furthermore, the statutory amendments state that a qualifying injury or illness need not manifest itself until after the service member leaves the military.

Practical Implications

The Defense Department Fiscal Year 2010 legislation does not have an effective date. However, employers should presume that the new FMLA provisions are effective immediately, with the exception of the provisions relating to veteran caregiver leave, which require action by the Secretary of Labor before they become effective. Employers covered by the FMLA should be ready to comply with the new requirements as soon as possible. Additionally, employers should revise their family and medical leave policies and their family and medical leave request, eligibility, certification, and designation forms to reflect the new FMLA expansions. Employers can also expect that the required FMLA poster will be revised by the Department of Labor in the near future. Once the revised poster becomes available, it should be posted in place of the currently available FMLA poster.

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