Legal Alert: Congress Expands FMLA's Family Military Leave Entitlements

Last week, the Family and Medical Leave Act ("FMLA") was amended to expand the two types of family military leave that became available in January 2008.

As you may recall, in January 2008, the FMLA was amended to allow for up to 12 weeks of leave for a “qualifying exigency” arising out of the deployment to active duty of an employee's parent, child, or spouse ("Exigency Leave").  Additionally, the FMLA was amended to add up to 26 weeks of leave to care for a family member (parent, child, spouse, next of kin) who is injured while serving on active military duty ("Military Caregiver Leave"). Revised FMLA regulations, including interpretations of the military-related leave amendments, became effective a year later in January 2009.

 Now, effective October 28, 2009 as part of the Fiscal Year 2010 National Defense Authorization Act, the FMLA has changed in two additional ways:

(1)       Before:  The January 2008 amendment allowed for Exigency Leave only for family members of service members called up to active duty from the National Guard or the Reserves in support of a contingency operation. 

            Now:   Exigency Leave not only is available to family members of National Guard and Reserves service members, but also to eligible family members (parent, child, spouse) 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.  A qualifying exigency includes preparing for a short-notice deployment, arranging for child care, making or updating financial or legal arrangements, attending counseling, resting and recuperating, post-deployment activities, and similar activities.

(2)       Before:  Under the Military Caregiver amendment, eligible family members could take leave (up to 26 weeks in a single 12-month period) to care for a current member of the Armed Forces, National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in out-patient status, or is on the temporary disability retired list for a serious injury or illness. 

            Now:  The law extends leave entitlement to families of veterans.  That is, leave may be taken to care for an employee's eligible family member who is undergoing medical treatment, recuperation or therapy for a serious illness or injury that occurred any time during the five years preceding the date of treatment.  Additionally, the definition of “serious injury or illness” is expanded generally to cover not only an injury or illness incurred in the line of duty, but also an injury or illness that existed before the service member’s or the veteran’s active duty and was aggravated by service in the line of active duty.  With respect to veterans, only certain, yet-undefined, injuries or illnesses will qualify.  The Department of Labor will provide this definition in its implementing regulations. However defined, the injury or illness may have manifested either before or after the service member became a veteran.

 Recommended Steps

• Update your existing FMLA policies and notices and ensure that employees are aware that they may be entitled to additional leave. 
• Train supervisors and managers who are decision-makers and who communicate information regarding leave laws to employees about the expansion of the family military leave laws.

The U.S. Department of Labor is expected to revise its FMLA regulations to implement these new provisions.  We will let you know when additional information is available.  In the meantime, if you have any questions concerning these issues, please contact KMK Labor & Employment attorneys Caroline M. DiMauro at 513.639.3865 or Paul D. Dorger  at 513.579.6940.

KMK Legal Alerts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client nor any particular situation.  Please consult with counsel of your choice regarding any specific questions you may have.

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