This content was originally published in January 2010. For the latest FMLA regulation changes, visit our FMLA article archives or try our practical FMLA compliance guide.
On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (the 2010 NDAA), which made several changes to the family military leave provisions of the Family and Medical Leave Act (FMLA). These changes went into effect immediately.
As a result, employers should be acting to change their existing policies regarding family military leave and should be mindful of the new changes when requesting certification of leave for a qualifying exigency or servicemember caregiver leave.
What Changed?
Exigency leave: Covers members of a regular component of the armed services. The 2010 NDAA expands an employee’s right to family military leave for an “exigency” associated with a covered family member’s active duty or call to active duty or service. FMLA leave benefits are now available to employees with covered family members who are members of a regular component of the armed forces or members of the reserve forces. Under the “old” law, only family members of National Guard and reservists were eligible for “exigency leave.”
Exigency leave: Covers duty in foreign country. The new law also expands the type of service duty for which a servicemember is covered. Now, servicemembers deployed to, or called or ordered to active duty in a “foreign county,” are covered under the FMLA. The “old” law only covered “contingency operations” specifically defined by regulation.
Servicemember caregiver leave: Covers veterans. The 2010 NDAA extends the 26 weeks of leave to employees who are family members of servicemembers and veterans for up to 5 years after a veteran leaves service if he or she develops a service-related injury or illness that was incurred or aggravated while on active duty. The new law expands the caregiver leave provision to include veterans who are undergoing medical treatment, recuperation, or therapy for serious injury or illness that occurred any time during the 5 years preceding the date of treatment. The “old” law covered only active military servicemembers.
The Definitions … Spell It Out
With these new requirements, employers must modify existing policy statements to include the new definitions for covered servicemembers and circumstances. To see a sample family military leave policy that includes the 2010 NDAA changes to the FMLA, see this month’s supplement to BLR’s Family and Medical Leave Act Compliance Guide, Forms section.
The new policy provisions should include:
- Qualifying Exigency Leave. Qualifying exigency leave applies to employees with a covered family member in the National Guard, reserves, or career servicemembers, when that covered family member receives a call or order to covered active duty (or notification of an impending call or order to covered active duty) in a foreign country. A covered family member includes the employee’s spouse, son, daughter (of any age), or parent.
- Servicemember Caregiver Eligibility. Up to 26 weeks of leave during any single 12-month period if the employee is the spouse, son, daughter, parent, or next of kin caring for a covered military servicemember or veteran recovering from an injury or illness suffered while on active duty in the armed forces, that existed before the beginning of the member’s active duty and was aggravated by service, or that manifested itself before or after the member became a veteran.
- “Covered military servicemember.” For the purposes of servicemember caregiver leave, the definition of a “covered military servicemember” is:
- A member of the armed forces (including a member of 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
- 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 a member of the National Guard or reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
- “Serious injury or illness.” A “serious injury or illness” means:
- For a member of the armed forces (including a member of the National Guard or reserves), an injury or illness that was incurred by the member in the line of duty on active duty in the armed forces (or that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the armed forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating; or
- For a veteran who was a covered servicemember of the armed forces (including a member of the National Guard or reserves), an injury or illness that was incurred by the member in the line of duty on active duty in the armed forces (or that existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the armed forces) and that manifested itself before or after the member became a veteran.
DOL’s Certification Forms
For the time being, the U.S. Department of Labor’s (DOL’s) certification forms for exigency leave and servicemember caregiver leave (the WH-384 and WH-385, respectively) do not reflect the changes brought about by the 2010 NDAA.
BLR expects that DOL will take steps to change the government-issued FMLA’s family military leave certification soon.
Until then, employers may continue to use the existing forms and make any necessary notation on the form regarding the new rules.
BLR also expects that DOL will issue new regulations addressing the recent changes to the family military leave provisions of the FMLA and will keep you informed of any developments.