New Law Expands FMLA Military Leave Provisions
On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (NDAA), which – among other things – expands the scope for military leaves under the Family and Medical Leave Act (FMLA). Specifically, this new law includes amendments to the FMLA provisions regarding “qualifying exigency leave” and “military caregiver leave” for employees who are relatives of service members. The NDAA provisions are considered immediately effective upon signature of the President on October 28.
FMLA Background
Under FMLA, eligible employees are permitted to take a total of 12 weeks of job-protected leave during a 12-month period due to the employee's or a family member's serious health condition, or the birth, adoption, or placement of a child for adoption or foster care. An employee is eligible if he or she:
- Has been employed for at least 12 months (not necessarily consecutive months); and
- Has worked for at least 1,250 hours during the 12-month period immediately preceding the leave of absence; and
- Works in an office or worksite at which 50 or more employees are employed.
In 2008, FMLA was amended to allow eligible family members of service members in the National Guard and Reserves to take 12 weeks of unpaid leave for a “qualifying exigency”, or urgent situation, related to the service member’s call to active duty. This amendment also allowed eligible family members to take up to 26 weeks of unpaid leave to care for a wounded service member who is the employee’s spouse, child or parent, or the employee’s next of kin (“military caregiver leave”). Please click here for more information regarding the 2008 amendments.
New Qualifying Exigency Leave Provision
Previously, only family members of anyone serving in the National Guard and Reservists who were called to active duty in support of a contingency operation were allowed to take 12 weeks leave for a qualifying exigency. Now, the new law extends the 12-week leave for a qualifying exigency to an eligible employee whose spouse, son, daughter, or parent is a member of ANY branch of the military (including National Guard and Reserves) and who was deployed or called to active duty in a foreign country. Additionally, the requirement that the active duty be in support of a contingency operation has been eliminated.
New Military Caregiver Leave Provision
The new law also extends military caregiver leave to eligible family members of certain veterans who were not covered by the 2008 FMLA military caregiver provisions. Now, eligible family members of veterans undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in the line of duty may take up to 26 weeks of military caregiver leave, as long as the veterans were members of the military within five years of the treatment, recuperation or therapy.
For the purposes of this provision, the definition of “serious injury or illness” has also been expanded to include pre-existing conditions that were aggravated by active duty service, as well as those incurred in the line of duty while on active duty. For veterans, the serious injury or illness may manifest itself before or after the service member became a veteran.
Employer Action
Employers covered by the FMLA should ensure that their FMLA policies and procedures are in compliance with the new provisions. Further, employers should be aware that the Department of Labor likely will issue additional regulations to address the new provisions. We will keep you updated as more information becomes available. In the interim, if you have any questions about these new measures, please contact our office at 919-403-1986.
Important Notice: Hill, Chesson & Woody does not engage in the practice of law, accounting, or medicine. Therefore, the contents of this communication should not be regarded as a substitute for legal, tax, or medical advice.
November 17, 2009
Hill, Chesson & Woody Employee Benefit Services
194 Finley Golf Course Rd, Suite 200,
Chapel Hill, NC 27517
Phone: 919.403.1986
Fax: 919.869.2063
www.hcwbenefits.com