New FMLA Amendments - family military leave entitlements

Last year, at just about this time, we were telling you about the new FMLA regs.

Nearly one year ago, the regulations implementing the Family and Medical Leave Act (FMLA) were substantially revised. Those revisions imposed certain new obligations on employers and created military leave entitlements for family members of military servicemembers who were injured in the line of active duty and for “qualifying exigencies” arising from a call to active duty.

Guess what, there’s now even more newness to catch up on!

Read more to find out what employers should do to ensure compliance…

On October 28, 2009, President Obama signed the Defense Department authorization bill for fiscal year 2010, which included new amendments to these provisions of the FMLA. These amendments expand the scope of the FMLA’s military leave entitlements and employers will need to revise any existing FMLA policy to ensure compliance with the amended FMLA provisions.

Changes Affecting “Qualifying Exigency” Leave

The military leave entitlement for a “qualifying exigency” previously applied to the spouse, son, daughter, or parent of an employee on active duty (or who has been notified of an impending call to active duty) in the National Guard or Reserves “in support of a contingency operation.”

Under the amended statute, this FMLA leave entitlement has been expanded to cover the spouse, son, daughter, or parent of a servicemember who is a member of the regular Armed Forces. In addition, the entitlement no longer applies to a call to duty “in support of a contingency operation.” Instead, it applies to a call to “covered active duty,” which is defined as deployment to a foreign country under certain statutory provisions.

Changes Affecting “Military Caregiver” Leave

Under the pre-amendment statute, an employee could take up to 26 weeks of unpaid leave to care for a parent, spouse, child, or next of kin, who was a member of the Armed Forces (including National Guard and Reserves) and who was injured while on active duty. This provision has been expanded to allow for leave to care for a servicemember whose pre-existing injury or illness was “aggravated by service in the line of duty on active duty in the Armed Forces.”

Additionally, the amendments create a new leave to care for “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.” The definition of a “serious illness or injury” has similarly been revised to cover a veteran’s “qualifying (as defined by the Secretary of Labor) illness or injury.” Because the Secretary of Labor has not issued regulations defining what constitutes a veteran’s qualifying injury or illness, this new leave entitlement is not yet effective but conservatism is recommended - employers should update policies now to ensure compliance with the law.

What Should Employers Do?

• Review your existing FMLA policies to determine if revisions are necessary for compliance with the amended statute’s military leave provisions.

• If you haven’t yet revised your FMLA policy and forms to reflect the January 2009 regulations, get with your favorite labor and employment attorney and make sure you correct that asap!

• Post the new FMLA poster when it becomes available from the Department of Labor.

• Make sure that you are using the appropriate FMLA forms issued by the DOL after the January 2009 revisions to the regulations (click here for the forms). Since the new forms aren’t yet available from the DOL wrt an employee requesting Qualifying Exigency or Military Caregiver leave, check back here often to see if the DOL has issued new forms reflecting the October 2009 amendments.