NDAA 2010 Expands Military Family Leave Benefits Afforded by FMLA

November 9, 2009

President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 ("NDAA"), Public Law 111-84, on October 28, 2009. While the NDAA is primarily an appropriations law, it also amends the family and medical leave rights of military personnel and their families. 

Background—NDAA 2008

Former President Bush signed into law the National Defense Authorization Act for fiscal year 2008 ("NDAA 2008"), which amended the Family and Medical Leave Act ("FMLA").  On November 17, 2008, the U.S. Department of Labor ("DOL") issued final regulations implementing changes to the FMLA which took effect on January 16, 2009. The new regulations implemented the qualifying exigency and military caregiver leave requirements.

Qualifying Exigency Leave entitles eligible employees to 12 weeks of leave in a 12-month period to tend to any "exigency" arising out of the fact the employee's spouse, child, or parent is on active duty or has been called up to active duty. This provision did not apply to family members of servicemembers who were in the regular Armed Forces. Qualifying exigencies include: short-notice deployment, military events and related activities, certain childcare and related activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and any other event that the employer and employee agree constitute a qualifying exigency.

Military Caregiver Leave entitles eligible employees to 26 workweeks of leave in a single 12-month period to care for a covered servicemember (who is the employee's spouse, parent, child, or relative for whom the employee is the "next of kin") who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. A covered servicemember is a current member of the Armed Forces (includes National Guard or Reserves) or those members who are on the temporary disability retired list. A "serious injury or illness" means an injury or illness incurred by a covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of his office, grade, rank, or rating.

What's New for Qualified Exigency Leave

As a result of NDAA 2010, qualified exigency leave is no longer limited to eligible families of members of the Reserve or National Guard. Now, qualifying exigency leave must also be extended to eligible family members of any member of the Armed Forces who is on active duty in a foreign country or is called to active duty in a foreign country. 

What's New for Military Caregiver Leave

The NDAA 2010 also extends the definition of "covered servicemember" to include a veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness and who was a member of the Armed Forces, including the National Guard and Reserves, at any time during the five-year period preceding the date on which the veteran undergoes medical treatment, recuperation or therapy. NDAA 2010 incorporates the definition of "veteran" that is used by the Department of Veteran Affairs: "[A] person who served in the active military, Naval, or Air Service, and who was discharged or released therefrom under conditions other than dishonorable."

The definition of "serious injury or illness" was also expanded for purposes of the military caregiver provisions of the FMLA. "Serious injury or illness" now includes an injury or illness that existed before the beginning of the member's active duty and was aggravated by service in the line of duty while on active duty. The serious injury or illness of a veteran is not required to render him "medically unfit to perform the duties of the member's office, grade, rank, or rating," but just one that "manifested itself before or after the member became a veteran."

Going Forward

It is anticipated that the DOL will revise its required FMLA notice and its FMLA regulations to implement these new provisions.

For additional information, please contact Amy Wilson (317.237.3481), Jeff Shoskin (513.651.6834) or any other attorney in Frost Brown Todd's Labor and Employment Department.

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