FMLA Military Leave Expanded for 2010
In 2008, the FMLA was amended to provide employees with job protection while they took “qualifying exigency leave” and “leave to care for a covered servicemember.” Under the newly-signed Fiscal Year 2010 National Defense Authorization Act (“FY 2010 NDAA”), these protections have been expanded.
“Qualified exigency leave” previously applied to either a member of the reserve components (Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve and Coast Guard Reserve), or a retired member of the Regular Armed Forces or Reserve. Prior to the FY 2010 NDAA, leave was not allowed for family members of the Regular Armed Forces. Under the new amendment, eligible family members of members of the Regular Armed Forces and Reserve are entitled to qualified exigency leave.
“Covered servicemember leave” previously was limited to FMLA leave to care for a current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or Reserves who is on the temporary disability retired list. The FY 2010 NDAA expands coverage to allow eligible family members to take FMLA leave for veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness who were members of the Armed Forces, including 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.
The types of injuries and illnesses for which eligible family members can use FMLA leave has also been expanded. It now includes pre-existing injuries or illnesses suffered by a covered servicemember that were aggravated by service in the line of duty while on active duty. FMLA leave is also now available for qualified employees who have an eligible family member who is a veteran who suffered an illness or injury in the line of duty or had a pre-existing injury or illness that was aggravated by service in the line of duty while on active duty, and that manifested itself either before or after the covered servicemember became a veteran.
Most of the terms used in the FY 2010 NDAA are defined in the statute or in the regulations that implemented the 2008 amendments to the FMLA, and some of the definitions are fairly esoteric. As a result, any attempts to interpret the law require careful parsing of the language of the sections that define or explain terms such as “covered servicementber,” “qualified exigency leave,” “serious injury or illness,” “eligible employee,” “outpatient status,” and other terms used in the statute or regulations.
The FMLA regulations have not yet been amended to include the changes mandated by FY 2010 NDAA. As a result, care should be taken when reviewing the regulations for information about how to apply the FMLA to employees who are seeking leave.
This article is not legal advice, and should not be relied on for any purpose. It is a summary of a complex area of the law, which may have changed since this article was posted on November 21, 2009.
Tags: FMLA for military families, NDAA Amendments for FY 2010
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