Employers Must Update FMLA Policies and Procedures Again

On October 28, 2009, President Obama signed into law the 2010 National Defense Authorization Act (2010 NDAA), which expands the recently-enacted exigency and caregiver leave provisions for military families under the Family and Medical Leave Act (FMLA).  The law took effect immediately.

Just last year, Congress amended the FMLA to provide exigency leave of up to 12 weeks for family members of the National Guard and reservists who are called to active duty in support of a "contingency" or emergency military operation without being given much notice.  The 2010 NDAA extends this benefit to family members of any regular component of the Armed Forces, and removes the requirement that it be in support of an emergency military operation.  Qualified exigencies include deployment to a foreign country, short-notice deployment, military events and related activities, certain childcare and related activities, financial and legal arrangements, counseling, rest and recuperation, and post-deployment activities. The FMLA, which applies to employers with 50 or more employees, already allows eligible employees to take up to 26 weeks of military "caregiver leave" in a single 12-month period to care for a service member who has a serious illness or injury that was incurred in the line of duty while on active duty.  Previously, military caregiver leave was only available to the family members of active-duty service members.  The new law now includes veterans, or one who "was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five years preceding the date on which the veteran undergoes... medical treatment, recuperation, or therapy."  Additionally, "serious injury or illness" now includes:

1. An injury or illness incurred in the line of duty during active duty, and
2. An injury or illness that existed before the member's active duty that was aggravated by service in the line of duty.

With many service members returning home with conditions like Post-Traumatic Stress Disorder (PTSD), these amendments allow additional time for diagnosing a condition such as PTSD, for which a service member may not display symptoms and be diagnosed until after he or she becomes a veteran.  Now, family members will be eligible for FMLA to care for these men and women. Although the effective date of the law is unclear and the U.S. Department of Labor has not yet issued new regulations, certification forms, or other FMLA-related forms to comply with the law's new definitions, employers are well-advised to take steps to achieve compliance now by revising company FMLA policies and forms to include the new information and by informing FMLA leave administrators of the changes.