FMLA To Be Modified Today!

The FMLA will be modified today.  President Obama is set to sign the National Defense Authorization Act of 2010 at 2:30 p.m. EST today. Section 565 of that legislation modifies the FMLA in several important ways:

• Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy.  Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard, or Reserves.
• Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty.  Currently, DOL regulations exclude aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave.  Only where the serious injury or illness rises to the level of a subsequent injury or illness will an employee be entitled to take military caregiver leave for the same covered servicemember.
• Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.  Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.
• The legislation extend qualifying exigency leave to federal employees covered by Title II of the FMLA.  Currently, federal employees covered by Title II do not have the right to take qualifying exigency leave.

The legislation directs the U.S. Department of Labor and Office of Personnel Management to work with the Secretary's of Defense and the Veterans Administration in formulating regulations to carry out the amendments.  It is unclear whether the legislation is effective immediately or whether it will become effective with the issuance of implementing regulations.  Consultation on this issue with DOL or OPM is highly recommended.

Comment: The legislation effectively implements bills introduced by Senator Dodd (D-CT) and Congressman Woolsey (D-CA)(H.R. 3403, S. 1543).  The amendments should greatly expand the availability and use of military family leave. 

Employers should review and adjust their FMLA leave policies accordingly to reflect the military family leave amendments.  I expect additional expansions of the FMLA in order for President Obama to fulfill his campaign promises to extend FMLA coverage to more employers, and to cover more family members and for more activities (e.g., school functions).