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On Oct. 28, 2009, President Obama signed the National Defense Authorization Act (NDAA) for Fiscal Year 2010 (Pub. L. 111-84). The NDAA includes provisions that expand the two types of military-related leave that became available under the Family and Medical Leave Act (FMLA) in January 2008—“qualifying exigency” leave and military caregiver leave. Although this portion of the NDAA does not have an effective date, according to the staff of the subcommittee on Military Personnel of the House Armed Services Committee, the NDAA took effect when President Obama signed it.

“Qualifying Exigency” Leave for Families
Under the FMLA, eligible employees may take leave for a “qualifying exigency” arising out of a spouse’s, child’s or parent’s active duty or call to active duty as a member of the Reserves or National Guard in support of a “contingency operation” declared by the U.S. Secretary of Defense, the president or Congress. Employees are entitled to take up to 12 work weeks of unpaid leave in any rolling 12-month period under this provision. Now, “qualifying exigency” leave is available to eligible families of members of the National Guard and Reserves, as well as to eligible families of any member of the Armed Forces. This leave is restricted to situations where the member of the National Guard, Reserves or Armed Forces is on active duty in a foreign country or is called to active duty in a foreign country. The U.S. Department of Labor (DOL) defines a “qualifying exigency” to include things such as preparing for a short-notice deployment, arranging for child care, making or updating financial or legal arrangements, attending counseling, resting and recuperating, post-deployment activities, and similar activities.

Military Caregiver Leave
Under the military caregiver provisions of the FMLA, eligible family members may take leave to care for a current member of the Armed Forces, National Guard or Reserves who is undergoing medical treatment, recuperation or therapy, is otherwise in out-patient status, or is on the temporary disability retired list for serious injury or illness. An eligible employee may take a combined total of 26 work weeks of military caregiver leave in a single 12-month period that begins on the date the employee first uses the leave and ends 12 months later.

The NDAA extends the entitlement to military caregiver leave to the families of veterans. Congress incorporated the definition of “veteran” that is used by the Department of Veterans Affairs: “[A] person who served in the active military, Naval or Air Service, and who was discharged or released therefrom under conditions other than dishonorable.”

Congress also expanded the definition of “serious injury or illness” for purposes of the military caregiver provisions of the FMLA. It now is defined as “an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or 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 may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.”

Since veterans, by definition, do not have a current “office, grade, rank or rating,” this requirement is replaced with the simple requirement that it be a “qualifying (as defined by the Secretary of Labor) injury or illness” that “manifested itself before or after the member became a veteran.” Although there currently is no definition of “qualifying,” employers are required to provide their leave now.

The entitlement to take military caregiver leave for the care of veterans extends only to family members of veterans when the veteran was a member of the Armed Forces at some point in the five years preceding the date on which the veteran undergoes the medical treatment or receives the therapy that necessitates the leave.

Recommendations
Employers will need to update their existing FMLA policies and ensure that employees are aware that they may be entitled to additional leave. Even though these amendments slightly reduce the benefits available to eligible member families of the National Guard and Reserves, since they extend additional benefits to the families of members of the active duty Armed Forces, and, for the first time, extend benefits to the families of seriously injured or ill veterans, employers should expect that more employees will be entitled to leave. It is anticipated that the DOL will revise its required FMLA notice and its FMLA regulations to implement these new provisions.

Since, in a little-noticed provision,1 the FMLA regulations now require that employers include all of the information in the DOL’s notice in their handbook, employers should take this opportunity to ensure that their current FMLA policy is compliant and watch for the release of a revised notice. Employers should contact their labor and employment attorneys in order to ensure compliance with these changes and to remain updated with regard to future developments in this area.

Footnote
1 See 29 C.F.R. § 825.300(a)(4).

Patrick H. Hicks is the Founding Shareholder of the Reno and Las Vegas Littler Mendelson offices. Hicks is Nevada’s most experienced employment law litigator and trial attorney, and he regularly appears in all state and federal courts in Nevada and elsewhere. He can be reached at phicks[at]littler.com.

Sandra Ketner advises and represents employers in a broad range of employment law matters for Littler Mendelson, including wrongful termination litigation, harassment and discrimination litigation, and other statutory and common law claims pertaining to employment law.  She can be reached at sketner[at]littler.com.