The Evolving Federal Family and Medical Leave Act: 2010 NDAA Amendments
By: ANNE M. RADOLINSKI
January 2010
The Family and Medical Leave Act of 1993 (FMLA) continues to evolve under the new administration as with the last. As our readers will recall, President Bush signed the Fiscal Year 2008 National Defense Authorization Act, effective January 28, 2008, which amended the FMLA to include “injured servicemember” and “qualifying exigency” leaves for eligible employees. The U.S. Department of Labor issued new regulations effective as of January 16, 2009, which clarified the parameters of “injured servicemember” and “qualifying exigency” leave and also provided significant clarification in a number of other areas. (See “New Family and Medical Leave Act Regulations Issued,” Anne M. Radolinski, November 2008.) Now, on October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (2010 NDAA), which substantially expands the list of those eligible for exigency and injured servicemember leave.
Exigency Leave.
Under the FMLA, an eligible employee may take up to 12 workweeks of unpaid leave for a “qualifying exigency” in a designated 12-month period. The exigency leave in essence allows the employee to attend military events and activities, and to address childcare, financial, and legal and other issues arising because the employee’s spouse, son, daughter, or parent is on or has been called, or been notified of an impending call, to “covered active duty” in the Armed Forces. Covered active duty is a new term under the 2010 NDAA and expands coverage to include: (1) for members of the regular Armed Forces, duty during deployment to a foreign country; and (2) for reserve members of the Armed Forces, duty during deployment to a foreign country under a call or order to active duty under federal law. The employee must meet all of the other FMLA eligibility requirements, which include that the employee: (1) must have worked at least 1250 hours in the preceding 12‑month period; (2) must have been employed for 12 cumulative months; and (3) must have FMLA leave still available for the designated 12‑month period.
Injured Servicemember Leave.
Under the FMLA, an employee may take up to a total of 26 workweeks of unpaid leave in a single 12‑month period counted from the first day of use to care for the employee’s spouse, son, daughter, parent, or “next of kin” who is a “covered servicemember” with a serious injury or illness. During this 12‑month period, the employee is entitled to a maximum of 26 weeks of leave including any leave for other FMLA-qualifying reasons. Under the 2010 NDAA amendments, the definition of covered servicemember has been expanded to cover: (1) a member of the Armed Forces, including the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or (2) a veteran who is undergoing medical treatment recuperation or therapy for a serious injury or illness and who was a member of the Armed Forces, including the National Guard or Reserves, at any time during the period of 5 years preceding the date on which the veteran undergoes such treatment, recuperation, or therapy. The definition of serious injury or illness has also been expanded under the new amendments to cover: (1) an injury or illness incurred by the servicemember in the line of duty on active duty (or that existed before active duty and was aggravated by the service) and that may render the servicemember medically unfit to perform the duties of the servicemember’s office, grade, rank, or rating; and (2) a qualifying injury or illness that was incurred by the servicemember in the line of duty on active duty (or that existed before active duty and was aggravated by the service) and that manifested itself either before or after the servicemember became a veteran. The employee must meet other FMLA eligibility requirements, which include that the employee: (1) must have worked at least 1250 hours in the preceding 12‑month period; and (ii) must have been employed for 12 cumulative months.
Takeaway
Federal Family and Medical Leave Act policies should be updated to reflect the expanded military leave entitlements effected by the National Defense Authorization Act for Fiscal Year 2010. Please contact a member of Fredrikson & Byron’s Employment & Labor Law Group for assistance with FMLA-related inquiries or assistance in updating FMLA policies and practices in light of the new amendments.