Question:

I recently saw something in the news about a new bill that the President signed that would impact employee leave under the Family Medical Leave Act (FMLA). Can you explain what the new rules are and how they affect employers?

Answer:

On October 28, 2009, President Obama signed the 2010 National Defense Authorization Act (NDAA) (H.R. 2647) into law. Among the provisions of the Act were two important expansions to existing FMLA military family leave entitlements. Those entitlements are exigency leave coverage for family members of active duty soldiers, and the expansion of the potential period during which FMLA caregiver leave may be taken.  Employers who are covered by the FMLA (i.e., those who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year) will therefore need to review their existing FMLA policies and notices, and implement the newly revised provisions regarding military leave benefits.

Most people are aware that the FMLA provides up to 12 weeks of unpaid leave to an eligible employee for the birth, adoption or foster care placement of an employee’s child, to provide medically necessary care to a spouse, son, daughter, or parent, or for the employee’s “serious health condition.” To be eligible for the leave, an employee must work for a covered employer, and must work at least 1,250 hours in the 12-month period before the leave begins. However, in 2008 the FMLA was expanded to provide coverage and additional benefits for military families.

Under the 2008 expansion of the FMLA, family members of soldiers in the Reserves or National Guard who were called to active duty were permitted to use FMLA leave for “qualifying exigencies,” which are defined by the U.S. Department of Labor to include the following situations: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities arising out of the covered military member’s active duty or call to active duty status, provided the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

The exigency leave provisions were restricted to family members of soldiers in the Reserves or National Guard. However, under the newly enacted 2010 NDAA, family members of active duty members of the Armed Forces will also now be entitled to FMLA exigency leave under the same circumstances as family members of members of the Reserves or National Guard.

In addition, the 2008 FMLA amendments provided that covered family members were eligible for up to 26 weeks of FMLA leave during a twelve month period to care for injured servicemembers.  That leave allowed eligible employees (i.e., the spouse, son, daughter, parent or next of kin of covered servicemembers in the Armed Forces, National Guard or Reserves) to take up to 26 weeks of leave during a 12-month period to care for a servicemember who, because of a serious injury or illness, is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is otherwise on the temporary disability retired list. Under the 2008 amendments, military caregiver leave was only available to care for current members of the Armed Forces, National Guard or Reserves. The new law provides that covered family members are also now eligible for 26 weeks of leave to care for veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness, and who were members of the Armed Forces (including members of the National Guard or Reserves) at any time during the five years preceding the date of treatment, recuperation or therapy.

The text of the Act addressing military family leave entitlements does not contain an effective date. However, a bill becomes law on the date of approval or passage, unless it expressly provides a different effective date. The NDAA’s changes regarding FMLA leave should therefore be considered to be effective as of the date of the bill’s signing, October 28, 2009.

If you receive a request from an employee for qualifying exigency leave or leave to care for an ill or injured servicemember, be sure to review the FMLA requirements carefully.
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