On Jan. 28, 2008, former President George W. Bush signed into law the National Defense Authorization Act of 2008, which amended the Family and Medical Leave Act (FMLA) of 1993 by providing leave to eligible employees for up to 26 weeks to care for covered service members (known as "military caregiver leave") and allowing eligible employees to use their regular 12 weeks of leave because of any "qualifying exigency" arising out of a covered family member's active duty status or notification of an impending call to active duty in support of a contingency operation.
In response, the Department of Labor (DOL) issued revised regulations to FMLA implementing the new provisions. The revised regulations became effective Jan. 16, 2009.
On Oct. 28, 2009, President Barack Obama followed Bush's lead in expanding the rights of military families under FMLA. Obama signed into law the National Defense Authorization Act for fiscal year 2010, now Public Law No. 111-084. The new law significantly broadens FMLA's military family leave provisions and promises to increase the number of employee requests for military family leave.
Military caregiver leave
FMLA's military caregiver leave provisions previously permitted an eligible employee to take up to 26 weeks of leave within a single 12-month period to care for a covered service member with a serious illness or injury. In addition to meeting regular FMLA eligibility requirements, an employee had to be a covered service member's spouse, son, daughter, parent or next of kin (meaning nearest blood relative).
The covered service member had to be a member of the Armed Forces, National Guard or National Reserves undergoing medical treatment, recuperation or therapy under the care of a health care provider approved by the Department of Defense (DOD); otherwise in outpatient status; or on the "temporary disability retired list." Former members of the Armed Forces, National Guard or National Reserves were excluded along with members on the "permanent disability retired list."
A covered service member also had to suffer from a "serious injury or illness" that was incurred in the line of duty and that may have rendered him or her "medically unfit" to perform the duties of his or her office, grade, rank or rating.
The new law expands the military caregiver leave provisions in two major ways.
First, the new law expands military caregiver leave to families of service members who suffer from a serious injury or illness that existed before the beginning of the service member's active duty and was aggravated by service in the line of duty. The requirement that the serious injury or illness may render the service member "medically unfit" to perform the duties of his or her office, grade, rank or rating remains the same.
Second, the new law provides military caregiver leave to families of veterans who are undergoing medical treatment, recuperation or therapy under the care of a DOD-approved health care provider for a serious injury or illness and who were members of the Armed Forces, National Guard or National Reserves at any time during the five years preceding the date on which the veteran undergoes medical treatment, recuperation or therapy.
In these cases, the serious injury or illness must have been incurred by the service member in the line of duty or must have existed before the beginning of the service member's active duty and have been aggravated by service. The serious injury or illness can have manifested itself before or after the service member became a veteran. Accordingly, military caregiver leave no longer excludes the families of former members of the Armed Forces, National Guard or National Reserves or members placed on the permanent disability retired list.
These changes have extended military caregiver leave rights to certain veterans and service members whose previously existing conditions were aggravated by military service.
Qualifying exigency leave
FMLA's qualifying exigency leave provisions previously permitted an eligible employee to use his or her regular 12 weeks of leave during a 12-month period if a spouse, parent, son or daughter was on active duty or was notified of "an impending call or order to active duty status in support of a contingency operation."
A "contingency operation" is a military operation that "results in the call or order to, or retention on, active duty of members of the uniformed services … during war or during a national emergency declared by the President or Congress."
The covered military member must have been a current member of the National Guard or National Reserves or a qualifying retired member of the Armed Forces. As a result, the families of ordinary members of the Armed Forces previously were explicitly ineligible for qualifying exigency leave.
There is an exclusive list of eight qualifying exigencies. The qualifying exigencies include:
The new law modifies the qualifying exigency leave provisions in two ways.
First, the new law extends qualifying exigency leave to the families of ordinary members of the Armed Forces. Therefore, qualifying exigency leave now is available to the families of all military members.
Second, the new law modifies the requirement that the military member be on active duty or have been notified of "an impending call or order to active duty status in support of a contingency operation."
According to the new law, military members are covered only if they are on "covered active duty." Ordinary members of the Armed Forces are considered to be on covered active duty whenever they are deployed to a foreign country. Similarly, members of the National Guard, National Reserves and certain retired members of the Armed Forces are considered to be on covered active duty when they are deployed to a foreign country under a federal call or ordered to active duty status in accordance with military laws. In essence, every military member is considered to be on covered active duty when deployed to a foreign country.
These changes significantly have modified qualifying exigency leave by extending leave to the families of regular military members (not just to the families of reservists) and extending this leave to the families of all military members who are deployed to a foreign country regardless of whether they are deployed in support of a contingency operation.
Best practices
The new National Defense Authorization Act for Fiscal Year 2010 does not have an effective date and, accordingly, you should presume its provisions became effective when it was signed into law. However, the provisions related to military caregiver leave do not appear to be effective until much-needed clarifying regulations are issued by DOL, which has not indicated a date when clarifications will be issued. Nevertheless, act now to ensure your workplace complies with the changes to FMLA. Consider the following:
The National Defense Authorization Act for Fiscal Year 2010 dramatically changes FMLA's military family leave provisions. If you have not previously received family leave requests, you may now begin seeing such requests. Similarly, if you have received such requests, be prepared for an increase. Although FMLA's military family leave provisions are fairly new to the employment scene, the multiple changes in a relatively short time period only further complicate employers' efforts to navigate an already complex FMLA. Act now to ensure compliance with the new FMLA provisions.
Jason C. Kim is a partner and Gray I. Mateo-Harris is an associate in the labor and employment practice group of the Chicago-based law firm Neal, Gerber & Eisenberg LLP.
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