On October 27, 2009, President Obama signed the 2010 National Defense Authorization Act, which contained new amendments to the Family and Medical Leave Act (FMLA). By way of background, the 2008 National Defense Authorization Act created a new leave right under the FMLA for families of service members. The new Act further expands FMLA coverage and available leave for military families in the following ways:
- Leave For a “Qualifying Exigency.” Previously, leave for a qualifying exigency in connection with a deployment for a contingency operation was not available to members of the regular Armed Forces, but only members of Reserves and National Guard units. The new amendments permit families of regular armed forces personnel who are deployed to foreign countries to qualify for such leave.
- Leave to Care For a Covered Service Member with a Serious Illness. So-called “military caregiver leave” provides up to 26 weeks of leave to employees caring for a current member of the armed forces, National Guard or Reserves. The new legislation permits leave to be taken for retired military service members as well, so long as it is within five years of the date on which the service member first receives treatment, recuperation, or therapy for the injury.
- Leave For Aggravation of Existing or Preexisting Injuries. The 2008 regulations specified that a later aggravation or complication of the same injury would not constitute a “subsequent injury” triggering another 26 weeks of leave. The new legislation, however, provides that an aggravation or complication of a prior injury will trigger a right to another 26 week leave period, although it will remain the case that the 26 weeks of leave will have to be taken in a single 12-month period for a single injury (and any leave not taken in that year forfeited).
Lessons Learned: The new amendments direct the U.S. Department of Labor (DOL) to work with the Secretaries of Defense and the Veterans Administration to draft regulations implementing the amendments. The legislation does not make clear whether the law goes into effect immediately or whether it will become effective after the new regulations are issued. It would be prudent, however, to proceed as if the law were in effect if faced with a request by an employee seeking leave to care for an eligible service member under the expanded law.
