Expanded Military Leave and the FMLA

HR Advisor feature article | January 2010

Last December, President Obama had authorized to deploy more than 30,000 troops for military service which would impact a greater number of employees and their employers.

Earlier in October, President Obama had signed the National Defense Authorization Act (NDAA) which includes provisions expanding military leave entitlements of the Family and Medical Leave Act (FMLA) by broadening the “qualifying exigency” leave and military caregiver leave that became effective in January 2008.  The following underscores the key changes about which employers should know:

Qualifying Exigency Leave:  To tend to important matters including childcare, financial, and any other arrangements made between the employer and employee due to a family member’s impending call to active duty military service, qualifying exigencies allow eligible employees to take up to 12 workweeks of unpaid time off during the normal 12-month period established by the employer for FMLA leave. 

• The leave entitlement extend to eligible employees whose spouse, son, daughter, or parent is a member of any regular military branch or the National Guard or Reserves.
• The requirement that call for active duty supports a “contingency operation” has been replaced with the requirement that deployment is to a foreign country.

Military Caregiver Leave:  Qualifying military caregiver leaves allow an employee to take up to 26 weeks of unpaid time off to care for a family member injured while serving on active military duty. 

• The benefits expands to include the care of a veteran suffering from a service-related serious injury or illness as long as the individual was a member of any regular military branch or the National Guard or Reserves within five (5) years of receiving medical treatment. This provision allows leave to care for a family member with an injury or illness such as post-traumatic stress disorder that might not manifest immediately.
• The definition of a “serious injury or illness” expands to allow caregiver leave for a pre-existing injury or illness aggravated by active duty in the military. For veterans, the definition allows the leave whether the injury or illness manifested itself before or after the Armed Forces member became a veteran.

Action Items:  While the NDAA did not specify when these amendments become effective, we recommend assuming the date October 28, 2009, when the NDAA was signed. If you have not done so yet, take this opportunity to review your current company Employee Handbook policies. 

• Review and revise as needed FMLA policies to ensure they comply with the expanded and military leave laws.
• Prepare for differences due to state laws. For example, employees entitled to military leave under the FMLA may be also entitled to additional time off under certain states medical leave provisions.
• While anticipating clarifications and updates from the U.S. Department of Labor, regularly communicate to your supervisors and employees about the expansion of the military leave laws.

Please note that while the federal FMLA generally applies to businesses with 50 or more employees, employers should also be aware of similar state-relevant laws that may affect their employees and their family members in the Armed Forces.

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