Expansion of FMLA Entitlement for Military Families

Posted on November 5, 2009 by Marc Fleischauer

The Family and Medical Leave Act has undergone yet another expansion. On October 27, 2009, President Obama signed H.R. 2647, known as the "Fiscal Year 2010 National Defense Authorization Act.” This new law comes on the heels of new FMLA rights that were just drafted at the end of 2008 for employees with family members serving in the military. 

As we described at the time in 2008 Final Regulations for the FMLA:  A Summary, the FMLA military leave provision effective at the beginning of 2009 originally extended the following protections:

 

(a) up to 12 weeks of leave for families of National Guard and Reserve personnel on active duty in order to manage activities associated with such service, known as “qualifying exigencies,” and 

 

(b) up to 26 weeks of leave for employees needed to care for family members in the military with a “serious injury or illness” that was incurred in the line of duty.

 

The new law expands both of these protections: 

 

(a) The 12-week “qualifying exigency” leave now applies to employees whose spouses, children or parents are on “regular” active military duty (i.e., not just National Guard and Reserve personnel) and are deployed to a foreign country. The prior language of the statute was ambiguous as to protection for families of regular military personnel.

 

(b)  Likewise, the 26-week “caregiver” leave now expressly extends to employees whose family members or next of kin have been discharged from the military (i.e., veterans) within five years before the need for treatment of a serious injury or illness. “Serious injury and illness” is now defined by the statute to include instances where a preexisting impairment merely has been aggravated by military service. 

 

These expansions of the FMLA went into effect upon signing. It seems likely that the U.S. Department of Labor will promulgate yet another set of recommended forms to cover these new circumstances in the near future. We will continue to monitor the issue and keep readers informed.

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FMLA Update - Are You Posted?

Posted on April 21, 2008 by Franck Wobst

Many employers may feel they are currently in a state of limbo with respect to their FMLA policies and obligations. As we reported on our Blog in January, the FMLA was amended on January 28, 2008 to include “any qualifying exigency” arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty in the military or has been notified of an impending call to active duty status as an additionally qualifying reason for up to 12 weeks of leave. The amendment also created a new leave entitlement of up to 26 weeks of leave for an employee who is the spouse, son, daughter, parent or next of kin of a servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty. 

The military family leave amendment took effect immediately, but left some key issues arising from the new leave categories unresolved. For example, rather than defining what constitutes a “qualifying exigency,” the Congress directed the Department of Labor to define the term in regulations. The DOL is also expected to develop new forms that employees, employers and medical providers can use in reference to the new leave categories. As of today, the DOL has not yet issued even proposed regulations for the military family leave amendment, and the final regulations and military leave forms may still be months away. At the same time, employers also are waiting to see what the DOL will do with respect to the proposed changes to the original FMLA regulations that were released for public comment in February of this year.

Many employers may be waiting for the DOL to issue the new FMLA regulations before revising their policies to include the new military family leave categories. This seems reasonable, but has not been expressly endorsed by the DOL as an acceptable approach. Thus, employers may be acting at their own peril if they wait too long to amend their FMLA policies to incorporate the new leave categories and to address additional issues related to the FMLA amendment. One thing that all employers covered by the FMLA should do immediately if they have not already done so is to post the Notice that the DOL did issue that advises employees of their new rights to military family leave. A copy of that posting is attached hereto, and the Notice can be obtained directly from the DOL's website. Posting of the DOL’s Military Family Leave Notice on employee bulletin boards where other employment law notices are posted is required by the FMLA. Moreover, by complying with this posting requirement, employers can say that they have informed employees of their new rights, albeit not as comprehensively as they will when they revise their employee handbook policies.
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