As reported in an earlier post, on October 27, 2009, President Obama signed the 2010 National Defense Authorization Act (2010 NDAA) into law. The 2010 NDAA modified the military family leave provisions of Titles I and II of the FMLA. As far as I can tell, to date, neither the DOL or OPM have taken an official position regarding the effective date of the amendments. Based on my review, the consensus of major labor and employment law firms and interested associations is that, absent an indication otherwise, the legislation went into effect immediately when President Obama signed it (i.e., October 27, 2009).
Recall, however, that, at least as far as the DOL was concerned, the 2009 NDAA amendment of the FMLA did not all go into effective immediately. The DOL took the position that the military caregiver provisions went into effect immediately, but the qualifying exigency leave provisions did not because the statute directed DOL to determine what qualifying exigencies were covered.
Unless and until the DOL or OPM issue an official statement otherwise, employers would be well-advised to immediately apply the new military family leave provisions. Until regulations are issued, employers need to do the best they can to comply with the statutory language.
For federal agency employers covered by Title II, the 2010 NDAA FMLA amendments allow employees to take qualifying exigency leave. Until OPM issues regulations implementing this right, federal employers should strongly consider applying the Title I regulations on this issue. The central part of those regulations are codified at 29 CFR 825.112(a)(5), 825.126, and 825.309.
I offer three thoughts in support of my suggestion. First, 5 USC 6387 directs the OPM to issue FMLA regulations that are consistent, to the extent appropriate, to the DOL FMLA regulations. Second, the OPM's recently proposed military family leave regulations are nearly identical to the DOL comparable regulations. Third, the guidance provided by the DOL regulations is a whole lot better than simply guessing at what might be a qualifying exigency under Title II.
What really needs to happen is that the DOL and OPM need to announce whether the 2010 NDAA FMLA amendments are effective and, if not, when they will be effective (i.e., when regulations are issued).