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New FMLA Amendments Expand Military
Leaves
October 28, 2009
Summary
Today, President Obama signed into law the
"National Defense Authorization Act for Fiscal Year 2010," which
expands military leaves available under the federal Family and
Medical Leave Act (FMLA). The amendments extend military
caregiver leave to family members of veterans and allow exigency
leave for family members of all covered active duty military men
and women.
Click here to see a copy of the new law. This is the
second expansion of the FMLA since 2008, when the military
family leave entitlements were first enacted. The amendments
will likely require the Department of Labor (DOL) to revise the
new FMLA regulations, which became effective in January of
2009.
Military Caregiver Leave Expanded
The new law expands military caregiver leave in
two ways. First, it allows family members of veterans
undergoing medical treatment, recuperation, or therapy for a
serious injury or illness incurred in the line of duty to take
caregiver leave so long as the veterans were members of the
military within five years of receiving such treatment. In
other words, if a veteran seeks medical treatment for a serious
service-related injury or illness within five years of serving
in the military, a family member can take up to 26 weeks of FMLA
leave to care for him or her. This change was made to reflect
the fact that military service-related injuries, such as
traumatic brain injury and post traumatic stress disorder, may
not manifest themselves until years after a service member
leaves active duty. A "veteran" is anyone who served in active
military duty and was not dishonorably discharged.
Second, an "injury or illness" for purposes of
military caregiver leave now includes the aggravation of
existing or pre-existing injuries. This means that employees
can take up to 26 weeks of leave to care for a service member
whose pre-existing injury or illness was aggravated in the line
of duty.
Exigency Leave Covers All Military Members
The new law also allows family members of
all covered active duty military men and women to take
advantage of exigency leave. Exigency leave allows employees
time off to handle certain urgent matters arising out of a
family member's active duty or call to active duty. Since
current DOL regulations limit exigency leave to family members
of Reserve and National Guard members only, this represents a
significant expansion of leave rights.
Moreover, the new law requires the DOL to work
with the Secretaries of Defense and Veterans' Affairs to draft
new regulations consistent with the expanded military leave
rights. This means that the FMLA military leave regulations,
along with the DOL medical certification forms, will be revised
again in the near future.
What This Means
While it is unclear from the language of the
new law, the new military leave rights are likely effective
immediately. This means that employers must again review and
revise their FMLA leave policies and forms to reflect the
expanded military caregiver and exigency leaves. Employers
should also train their human resources staff and managers on
the new changes. Since these military leaves are provided only
under the federal FMLA, the new law does not impact leave rights
under the California Family Rights Act.
This E-Update was authored by
Brenda
Kasper,
Lisa Frank
and
Timothy Keegan. For more information, including information
on revising your FMLA policies and forms and providing training
to your staff, please contact Ms. Kasper, Ms. Frank, Mr. Keegan
or any Paul, Plevin attorney at 619-237-5200.
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