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On October 28, 2009, President Obama signed into law the National Defense Authorization Act of 2010. Section 565 of the Act amends the Family Medical Leave Act (“FMLA”) by expanding the provisions enacted in 2008 for family members of military personnel. At the beginning of 2008, Congress created two kinds of leave for family members of military personnel: “exigency leave” and “military caregiver leave.” The new law not only expands the number of employees qualifying for leave, but also expands the circumstances under which employees may take leave.
The new law expands the FMLA exigency leave coverage in two ways.
First, exigency leave is now available to family members of reservists, retired military personnel, and active duty personnel. The old law only provided exigency leave to eligible employees whose family member (meaning the employee’s parent, spouse, son, or daughter) was on active duty or had been notified of an impending call or order to active duty either as a member of the Reserves or National Guard, or as a retired member of the Regular Armed Forces. Now, exigency leave is also available to family members of active duty service members.
Second, exigency leave is now available to family members of military personnel deployed to a foreign country. The old law required the military personnel to be deployed “in support of a contingency operation,” which is defined at 10 U.S.C. § 101(a)(13). The new law does not include the “contingency operation” requirement.
Furthermore, the FMLA military caregiver leave was expanded to permit leave in additional circumstances. Under the old law, a family member could take FMLA leave to care for a member of the military, including the National Guard or Reserves, but only for injuries or illnesses incurred while serving on active duty. The new law permits employees to take caregiver leave for their family member’s injuries or illnesses that existed prior to active duty, if the injury or illness was aggravated by active duty.
The Secretary of Labor will likely issue new regulations to carry out the amendments. Look for additional E-Alerts regarding new regulations.
The full text of the FMLA amendments may be found here. The amendments are located at Section 565, on pages 120-124.