Congress Expands FMLA Leave For Military Families

By Bill Pokorny

On October 22, the Senate approved the 2010 Department of Defense authorization bill. Buried deep in the expansive bill is a provision expanding the Family and Medical Leave Act provisions allowing employees to take leave due to “qualifying exigencies” arising from family members’ military service, and to care for family members injured in the course of military service. The House previously approved the bill on October 8, and President Obama is expected to sign it. The amendment will take effect upon the President’s signature.

Qualifying Exigency Leave

Last year, the FMLA was amended to allow an employee whose spouse, son, daughter, or parent is deployed on active duty with the National Guard or Reserves in support of a “contingency operation” to take up to 12 weeks of FMLA leave due to certain “qualifying exigencies” arising from the family member’s active duty service.

The new legislation expands this leave entitlement in two ways. First, while the FMLA currently allows “qualifying exigency” leave only for families of National Guard or Reserve members, the amendment extends such leave to families of those serving in the regular Armed Forces. Second, while the law currently applies only to “qualifying exigencies” arising from a family member’s active duty service in support of a “contingency operation,” the amendment expands coverage to any active duty service in a foreign country.

Military Caregiver Leave

Under last year’s amendments, the Act also permits eligible employees to take up to 26 workweeks of leave in a single 12-month period to care for a “covered servicemember” during treatment, recovery, or outpatient care for a serious injury or illness incurred during active duty service in the regular Armed Forces, National Guard, or Reserves. Originally, this provision allowed leave only to care for current members of the Armed Forces, but not veterans. The new legislation allows leave to care for a veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in the course of active duty, if the treatment, recuperation, or therapy occurs within 5 years after the veteran leaves military service.  The new law also expands the definition of “serious injury or illness” to cover conditions existing prior to active duty military service, but which were aggravated by such service.

For more information about the FMLA, including an executive summary of the 2008 FMLA amendments and the Department of Labor’s revised regulations, please visit our FMLA website, www.FMLARegs.com. There, you can also listen and subscribe to our monthly FMLA Insights Podcast.

For questions regarding this new law or the FMLA in general, contact Jeff Nowak, Bill Pokorny, or any Franczek Radelet attorney.