Client Alert from the Labor and Employment Group - November 2009
MORE CHANGES IN THE FMLA
by Patricia Weisberg and Michael Schmeltzer
For the second time in the last two years, Congress has expanded the scope of the Family and Medical Leave Act (FMLA). On October 28, 2009, President Barack Obama signed into law the 2010 National Defense Authorization Act (NDAA), which includes provisions that substantially expand the scope of the FMLA's military family leave entitlement. The legislation extends eligibility for FMLA exigency leave to a larger population of employees. In addition, it expands the definition of "covered service member" for purposes of caregiver leave.
Extension of Caregiver Leave Provisions
The new law extends the military caregiver leave provisions of existing law to veterans. Prior to the 2010 NDAA, military caregiver leave was available to care only for current members of the Armed Forces, Guard or Reserves. The new legislation expands the definition of "covered service member" to include veterans who are undergoing medical treatment for a "qualifying serious injury or illness" sustained in the line of duty who were members of the Armed Forces within five years preceding the need for the medical treatment. The FMLA permits eligible employees to take up to 26 weeks of military "caregiver leave" in a single 12-month period to care for a service member, now including veterans with a serious injury or illness.
In addition, the scope of the injuries that will permit a family member to take leave to care for a covered service member have been expanded to include service-related aggravation of existing or preexisting injuries.
The new FMLA provisions direct the Secretary of Labor to define what constitutes a "qualifying injury or illness" of a veteran that would trigger the right to military caregiver leave for a former service member.
Expansion of Definition of Exigency Leave
Recent Amendments to the FMLA established an "exigency leave" benefit (of up to 12 weeks) for qualifying family members of service members who have been called to active duty, in order to engage in necessary activities on behalf of the service member, such as making arrangements for childcare, attending school activities, making financial and legal arrangements, attending counseling, and attending to farewell or arrival arrangements for the service member. Prior to the 2010 NDAA, this entitlement was available only to family members of service members in the Reserves or National Guard who had been called to active duty in support of a "contingency operation." The new legislation extends qualifying exigency leave to family members of the regular members of the Armed Forces on "active duty" who have been deployed to a foreign country. The restriction that qualifying exigency leave be limited to military service that supports a "contingency operation" has also been removed.
WHAT SHOULD EMPLOYERS DO?
The Defense Department's fiscal year 2010 legislation does not have an effective date. Employers, however, should presume that the new FMLA provisions were effective immediately upon the President's signature, with the exception of the provisions related to veteran caregiver leave which require action by the Secretary of Labor before they become effective. Employers should revise their Family and Medical Leave policies and their Family and Medical Leave requests, eligibility certification and designation forms to reflect the new FMLA expansions. Employers should also expect that the FMLA poster will be revised in the near future.
If you have any questions or concerns about your company's FMLA policy, you should consult with an attorney who is familiar with employment law. The Labor and Employment attorneys at Walter & Haverfield will be pleased to help.
