FMLA Military Leave Provisions Expanded
On October 28, 2009, President Obama signed the National Defense Authorization Act of 2010 (NDAA 2010) into law. The NDAA 2010 is significant to employers who are subject to the Family and Medical Leave Act (FMLA) because it expands the scope of qualified exigency and military caregiver leaves of absence that initially took effect in 2008.
Qualified Exigency Leave
Previously, the FMLA allowed for 12 weeks of qualified exigency leave to employees with family members in the National Guard or Reserves who were called to active duty or notified of impending active duty as part of a "contingency operation." Qualified exigency leave was not available to employees with family members who were active in the "regular" Armed Forces. The NDAA 2010 extends the scope of qualified exigency leave to allow eligible employees to take FMLA leave for a qualifying exigency related to the deployment of a covered family member who serves in any component of the Armed Forces, not just the National Guard or Reserves. In addition, it is no longer required that the employee's family member be called to active duty or receive notice of an impending call to active duty for a "contingency operation"; covered active duty now also includes deployment to any foreign country as a member of the Armed Forces.
Military Caregiver Leave
The FMLA also provides up to 26 weeks of leave during a 12 month period for employees with a spouse, son, daughter, parent, or next of kin who suffers a serious injury or illness as a service member. Before the NDAA 2010, this leave was available only to employees with family members who currently served in the Armed Forces, including the National Guard or Reserves; military caregiver leave was not available to employees whose family members were veterans. In addition, this leave pertained only to serious injuries or illnesses that were actually incurred while the individual was a service member; pre-existing conditions aggravated by injuries or illnesses incurred during active duty service were not covered. The NDAA 2010 extends military caregiver leave to employees with family members who are veterans of the Armed Forces (including the National Guard or Reserves) and who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in active duty, so long as the veteran was a member of the Armed Forces at some time during a five-year period preceding the date of treatment. The NDAA 2010 also expands the definition of a "serious injury or illness" to include pre-existing injuries or illness that are aggravated by military service.
What the NDAA 2010 Means For Employers
The NDAA 2010 takes effect immediately. To ensure compliance with the NDAA 2010, employers should review and revise their FMLA policies and practices to comply with the NDAA 2010. Employers should also consider training supervisors to understand the expanded coverage of the FMLA.
If you have any questions regarding the NDAA 2010 or the FMLA, please contact: