FMLA Military Leave Expanded

On October 28, 2009, President Obama signed the 2010 National Defense Authorization Act (“2010 NDAA”), which expands the Family and Medical Leave Act’s military family leave benefits effective immediately.  FMLA coverage for military families was first extended in 2008.    (See our previous article 2008 FMLA Amendments Include Family Leave to Care for Members of Armed Forces)  The 2008 Act allowed covered family members to take FMLA leave for any “qualifying exigency” arising out of the fact that a service member is on active duty (or has been notified of an impending call or order to active duty) in the National Guard or Reserves in support of a contingency operation.  Subsequently, the Department of Labor defined “qualifying exigencies” to include the following eight situations: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status, provided the employer and employee agree that such leave qualifies as an exigency, and agree to both the timing and duration of such leave.  

The 2010 NDAA extends FMLA exigency leave coverage to family members of active duty members of the Armed Forces.  As originally enacted, qualifying exigency leave was designed to help families of National Guard and military reservists manage affairs when the service member was called to active duty.  The 2010 NDAA also extends caregiver leave for covered family members to care for veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness and who were members of the Armed Forces (including the National Guard or Reserves) at any time during the five years preceding the date of treatment, recuperation or therapy.  Under the 2008 Act, caregiver leave was limited to a covered family member of current members of the Armed Forces, but did not include any leave for veterans’ care.

In addition to this expanded federal protection, several states, including California, Connecticut, Illinois, New York and Oregon, have enacted their own family military leave laws.  Employers in these states must be familiar with both federal and state laws and should update their leave of absence policies accordingly.

For additional information on this topic, please contact Douglas S. Zucker at DSZ@zuckerhatfield.com or Kathryn V. Hatfield at KVH@zuckerhatfield.com.