FMLA Expands Yet Again

Wednesday, November 04, 2009

Last year, the National Defense Authorization Act (NDAA) provided two additional military-related reasons for FMLA leave:  qualifying exigency leave and caregiver leave for a seriously injured or ill covered servicemember. In late October, a new law by the same name (the NDAA for Fiscal Year 2010) further expands FMLA by broadening those military-related FMLA reasons.

Under the new NDAA, a qualifying exigency exists when the servicemember is called to “covered active duty,” which required deployment to a foreign country. This now applies not only to reserve military called to active duty but also members of a regular component of the Armed Forces. Previously, regular military personnel were not eligible for qualifying exigency leave.

Also under the new law, the term “covered servicemember” has changed to include 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 within the prior five years. Previously, this FMLA leave reason was available only for care given to a member of the active or reserve military. Recall that the person taking the leave must be a spouse, son, daughter, parent or next of kin to the servicemember.

Finally, the concept of a serious injury or illness is broader. This definition now includes an injury or illness that existed before active duty began and was aggravated during the deployment. For veterans, a serious illness or injury may be one that was incurred in the line of duty, existed before active duty and was aggravated during the deployment and simply manifested itself at any time before or after the servicemember became a veteran.

The new law did not alter other aspects of FMLA, including health benefit continuation. The practical effect of this law is that military-related FMLA leave will be easier to obtain. The effective date of this provision (Section 565 of the law) was not given. Therefore, the general rule is that these rules are effective immediately.