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Expanded FMLA Benefits Available to Military Families

On October 28, 2009, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act, which amended the Family Medical Leave Act (FMLA) to expand the availability of FMLA leave to military families.  Employers should both be aware of these changes and modify FMLA policies accordingly.

Expanded Qualified Exigency Leave

When the FMLA was previously amended in 2008, it was expanded to cover family members of individuals serving in the National Guard and other Reserve components of the Armed Forces.  Under the 2008 amendments, a spouse, child or parent of a member of the National Guard or a Reserve component was eligible for up to twelve weeks of unpaid leave during a 12-month period.  These benefits were available when the service member was either called into active duty or already on active duty in support of a military “contingency operation.” 

The FMLA amendment provides that “qualifying exigency” leave now applies to family members of regular Armed Forces service members if he or she is deployed on active duty in a foreign country.  A “qualifying exigency,” as defined by the FMLA’s regulations, includes a broad range of activities, such as child care, school activities, financial and legal arrangements, notice of imminent deployment, rest and recuperation, post-deployment activities, counseling, military events and related activities, and additional activities agreed upon by the employer and employee.

Expanded Military Caregiver Leave

The amended FMLA also expands the classes of individuals who may take FMLA leave as “Military Caregivers.”  Under the 2008 amendments, a spouse, child, parent, or next of kin could take up to twenty-six weeks of FMLA leave in a 12-month period to care for a member of the Armed Forces, National Guard or Reserve who became injured or ill while on active duty.  The new FMLA provisions expand these benefits in three ways.  First, FMLA leave is now available where the service member had a pre-existing condition that was aggravated in the line of duty.  (The FMLA no longer requires the injury to arise while the service member is on active duty.)  Second, the new FMLA provisions extend coverage to family members of military veterans.  (Under the 2008 Amendments, FMLA leave was only available to families of service members who were either on active duty or on temporary disability retired status.)  Now, leave is available even if the service member is no longer on active duty.  If the service member has been on active duty within the past five years and the injury or illness was caused by a condition that arose while the service member was on active duty, then a family member may take up to twenty-six weeks of unpaid leave per a 12-month period to care for the service member.  These benefits are only available if the service member is undergoing medical treatment, recuperation, therapy or is listed on the temporary disability retired list.  Finally, under the new provisions, a family member of a veteran of the Armed Forces is entitled to FMLA caregiver-leave even if the “qualifying injury or illness” did not manifest until after the service member became a veteran.

Employers Should Modify Their FMLA Policies Accordingly

Every employer should take note of these changes and update FMLA policies accordingly.  The new provisions extend coverage to families of members of any Armed Forces component, so they will affect a large number of employees.  Remember that the family members still need to satisfy the standard FMLA requirements in order to qualify for leave.  They must have worked at least 1,250 hours in the previous 12 months at a company with at least 50 employees working within 75 miles of their primary worksite.  If you have any questions about these recent amendments, or if you need assistance in modifying your FMLA policies, please contact any member of the Greenebaum Doll & McDonald Labor & Employment Practice Group

  • Partner

    Phil is a partner and former co-chair of the Labor and Employment Department. He represents employers in defending against employment-related claims in both federal and state courts. He represents clients involving covenants not ...

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