E-Alerts

FMLA Amended: Effective Immediately! Expansion Of Military Leaves

On October 28, 2009, President Obama amended the federal Family and Medical Leave Act of 1993 (“FMLA”) when he signed into law the Fiscal Year 2010 National Defense Authorization Act (H.R. 2647).  This amendment includes an expansion of the two military-related FMLA leaves that were first signed into law in January, 2008:  the twelve-week Qualified Exigency Leave and twenty-six week Military Caregiver Leave.

FMLA Qualifying Exigency Leave Now Applies To All Service Members On Covered Active Duty

Prior to the amendment, eligible employees of covered employers could take up to twelve weeks of unpaid leave under the FMLA to address a “Qualifying Exigency” when the employee’s family member (spouse, parent or child) who was also a member of the National Guard or Reserves was called to active duty in support of a contingency operation.   The amendment expands Qualifying Exigency Leave so that it now applies to family members who are also members of the regular Armed Forces, and modifies the definition of “Covered Active Duty” for purposes of triggering Qualifying Exigency Leave.   In the case of regular military members, Covered Active Duty is defined as deployment to a foreign country; in the case of reservists, Covered Active Duty is defined as deployment to a foreign country under a call or order to active duty.

Qualifying Exigencies include such things as short-notice deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; and post-deployment events.  Under the amendment, eligible employees may now take Qualifying Exigency Leave for these purposes, regardless of whether the employee’s family member serves in the Reserves, National Guard, or regular Armed Forces.

Military Caregiver Leave Now Includes Veterans

The amendment also expands FMLA Military Caregiver Leave to apply to veterans.  Prior to the amendment, eligible employees of covered employers could take up to twenty-six weeks of unpaid leave in a single twelve-month period to care for a “Covered Service member” injured in the line of active duty.   Under the amendment, Covered Service members now include veterans who are undergoing treatment for a serious illness or injury incurred in the line of active duty and who were members of the Armed Forces, including the National Guard or Reserves, within the five years preceding the treatment.

Significantly, employees who are “next of kin” of the Covered Service member may take Military Caregiver Leave.  “Next of kin” means the nearest blood relative, other than a spouse, parent, or child, to the service member.  Alternatively, the service member may designate the next of kin that he or she wishes to provide care.  Next of kin are not eligible for other types of FMLA leave.  This aspect of the FMLA was not altered by the amendment.  Accordingly, employees who are next of kin of Covered Service members who are veterans are now eligible for FMLA Military Caregiver Leave.

Compliance Tips – FMLA Amendment Is Already In Effect! 

Because this expansion of the FMLA military-related leaves is already in effect, employers should immediately:

• Update their FMLA compliance packages to reflect the expanded military leaves.
• Revise their FMLA policies and the required notices, such as the Notice of Eligibility and Rights and Responsibilities Form and Designation Notice.
• Train managers and human resources staff about the new requirements and their compliance obligations.

The Firm offers an FMLA Compliance Package that includes all required FMLA forms, tailored to the employer’s specific policies and practices.