President Obama recently signed into law the 2010 National Defense Authorization Act which (among other things) expands Military FMLA leave in the following ways:
- Qualifying Exigency Leave, which was previously limited to family members of those in the National Guard or Reserves, is now extended to family members of active duty members of the Armed Forces. In addition, the requirement that a call to active duty be in support of a contingency operation was removed, and covered active duty now relates to when a member of the Armed Forces is deployed to any foreign country.
- Military Caregiver Leave, which was previously limited to the family of active duty members, will now be extended to family members of veterans who are undergoing medical treatment, recuperation or therapy for a “serious injury or illness,” and who were members of the Armed Forces (including the National Guard or Reserves) at any time during the five (5) years preceding the date of treatment, recuperation or therapy.
- “Serious injury or illness” now includes any injury or illness that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces. For veterans, the injury or illness may manifest itself before or after the member became a veteran.These new FMLA rights are effective immediately, and employers should revise their FMLA policies to reflect these changes. We expect revised FMLA regulations and a new FMLA poster to be released in the near future.
Reminder: State Family Military Leave Laws
Now is also a good time to remind employers that the states in which they operate may impose additional family military leave obligations on them apart from those under the FMLA.
Under New York Labor Law 202-i, for example, New York employers who have 20 or more employees must provide 10 days of unpaid leave to the spouse of a member of the Armed Forces (including National Guard or Reserves) on active duty in a combat theater or zone of operations. This leave can only be used when the member of the Armed Forces is on leave from active duty, and the employee must work at least 20 hours per week to be eligible.
Other states with family military leave laws include California, Connecticut, Illinois, Indiana, Maine, Minnesota, Nebraska, Oregon, Rhode Island and Washington.