On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA), which includes provisions that expand the military leave entitlements of the Family and Medical Leave Act (FMLA) by expanding both the “qualifying exigency” leave and military caregiver leave that became effective in January 2008.
Prior to these new amendments, an eligible employee whose spouse, son, daughter or parent was on active duty or called to active duty in support of a contingency operation as a member of the National Guard or Reserves was entitled to “qualifying exigency” leave. The new law extends qualifying exigency leave to an eligible employee whose spouse, son, daughter, or parent is a member of any branch of the military, including the National Guard or Reserves, and who was deployed or called to active duty in a foreign country. In addition to extending qualifying exigency leave to eligible family members of a member of any branch of the Armed Forces, the new law eliminates the requirement that the active duty be in support of a contingency operation.
The new law did not change the length of leave entitlement under the FMLA. A covered employer still must allow an eligible employee up to a total of 12 workweeks of unpaid leave during the normal 12-month period established by the employer for FMLA leave. The reasons for which an eligible employee can take qualifying exigency leave also are unchanged. Such leave still can be taken for short-notice deployment, military events, and related activities such as official ceremonies, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status.
The new amendments expand military caregiver leave in two ways: First, the new law extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any time within five years of receiving the medical treatment that triggers the need for military caregiver leave. Therefore, employees who are family members of a current service member or veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in the line of duty may take up to six months of caregiver leave, so long as the veteran was a member of the military within five years of receiving such treatment. Employers do not have the option of using the typical FMLA calendar-year method for military caregiver leave – the 12-month period begins when the employee begins using caregiver leave.
Second, the new amendment expands the definition of a “serious injury or illness” for purposes of determining eligibility for military caregiver leave. It has been expanded to include the aggravation of existing or pre-existing injuries to an active duty service member in the Armed Forces. Thus, employees may now take military caregiver leave for a family member whose pre-existing injury or illness was aggravated while on active duty. For veterans, the definition allows the leave whether the injury or illness manifested itself before or after the Armed Forces member became a veteran.
The NDAA did not specify the date on which these amendments to the family military leave entitlements become effective. Thus, the presumption is that these changes took effect when President Obama signed the NDAA on October 28. It is anticipated that the U.S. Department of Labor will issue guidance to address the changes in the near future.