E-Newsletter

November 2009

Military Exigency and Caregiver Leave Expanded under Federal FMLA

Keith E. Kopplin, Esq.

On October 28, 2009, President Barack Obama signed the National Defense Authorization Act for Fiscal Year 2010 into law. Tucked among the 655 pages of budgetary allocations and specifications for the United States Department of Defense is a section making four significant changes to the federal Family and Medical Leave Act (FMLA).

Background and Current Law on Military Exigency and Caregiver Leaves

As part of the National Defense Authorization Act for Fiscal Year 2008, the federal FMLA was amended to provide two new types of leave. The first, which is called Military Exigency Leave, permits an employee who has a spouse, son, daughter, or parent in the National Guard or military reserves to take up to 12 weeks of unpaid leave due to a qualifying exigency-i.e., an urgent or immediate family need arising out of the fact that the covered family member has been called to or is serving on military duty in the National Guard or military reserves in support of a contingency operation. The second, which is called Military Caregiver Leave, permits an employee to take up to 26 weeks of unpaid leave to care for a spouse, son, daughter, parent, or next of kin who is a servicemember in the regular Armed Forces, National Guard, or military reserves who incurs a serious injury or illness while on active duty.

To aid in implementing these new types of leave, the federal regulations were amended, with an effective date of January 16, 2009. Now, however, less than a year later, both of these new types of leave have been amended to provide broader coverage and greater protections.

Four Important Changes to Military Exigency and Caregiver Leaves

With regards to Military Exigency Leave, the National Defense Authorization Act for Fiscal Year 2010 (1) extends coverage to family members in the regular Armed Forces, and (2) permits leaves associated with any deployment to a foreign country. Previously, leave was only available for employees with a spouse, son, daughter, or parent in the National Guard or military reserves, not career military personnel, and only when such individuals were deployed in support of a contingency operation.

With regards to Military Caregiver Leave, the National Defense Authorization Act for Fiscal Year 2010 (3) extends coverage to veterans suffering a service-related injury or illness, provided the veteran was a member of the Armed Forces, National Guard, or military reserves at some point during the five years prior to needing care, and (4) permits leaves associated with pre-existing injuries or illnesses that are aggravated during active duty. Previously, leave was only available to employees for the care of a spouse, son, daughter, parent, or next of kin currently serving in the Armed Forces, National Guard, or military reserves, and only when such individuals incurred an injury or illness while on active duty.

Employers are therefore encouraged to make the new leave available as soon as administratively possible.

For guidance on this and other employment law questions, contact Krukowski & Costello, S.C.'s educational services department at (414) 423-1330.