Oct. 27, 2009 New FMLA Amendments Expand Military Leaves

Summary

Today, President Obama signed into law the "National Defense Authorization Act for Fiscal Year 2010," which expands military leaves available under the federal Family and Medical Leave Act (FMLA).  The amendments extend military caregiver leave to family members of veterans and allow exigency leave for family members of all covered active duty military men and women.  Click here to see a copy of the new law.  This is the second expansion of the FMLA since 2008, when the military family leave entitlements were first enacted.  The amendments will likely require the Department of Labor (DOL) to revise the new FMLA regulations, which became effective in January of 2009. 

Military Caregiver Leave Expanded

The new law expands military caregiver leave in two ways.  First, it allows family members of veterans undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in the line of duty to take caregiver leave so long as the veterans were members of the military within five years of receiving such treatment.  In other words, if a veteran seeks medical treatment for a serious service-related injury or illness within five years of serving in the military, a family member can take up to 26 weeks of FMLA leave to care for him or her.  This change was made to reflect the fact that military service-related injuries, such as traumatic brain injury and post traumatic stress disorder, may not manifest themselves until years after a service member leaves active duty.  A "veteran" is anyone who served in active military duty and was not dishonorably discharged.  

Second, an "injury or illness" for purposes of military caregiver leave now includes the aggravation of existing or pre-existing injuries.  This means that employees can take up to 26 weeks of leave to care for a service member whose pre-existing injury or illness was aggravated in the line of duty. 

Exigency Leave Covers All Military Members

The new law also allows family members of all covered active duty military men and women to take advantage of exigency leave.  Exigency leave allows employees time off to handle certain urgent matters arising out of a family member's active duty or call to active duty.  Since current DOL regulations limit exigency leave to family members of Reserve and National Guard members only, this represents a significant expansion of leave rights. 

Moreover, the new law requires the DOL to work with the Secretaries of Defense and Veterans' Affairs to draft new regulations consistent with the expanded military leave rights.  This means that the FMLA military leave regulations, along with the DOL medical certification forms, will be revised again in the near future. 

What This Means

While it is unclear from the language of the new law, the new military leave rights are likely effective immediately.  This means that employers must again review and revise their FMLA leave policies and forms to reflect the expanded military caregiver and exigency leaves.  Employers should also train their human resources staff and managers on the new changes.  Since these military leaves are provided only under the federal FMLA, the new law does not impact leave rights under the California Family Rights Act.

This E-Update was authored by Brenda Kasper, Lisa Frank and Timothy Keegan.  For more information, including information on revising your FMLA policies and forms and providing training to your staff, please contact Ms. Kasper, Ms. Frank, Mr. Keegan or any Paul, Plevin attorney at 619-237-5200.