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FMLA Further Expanded For Military Family MembersIn October 2009, President Obama signed into law the Department of Defense Authorization Law, which, in part, expands the Family and Medical Leave Act (FMLA) rights of military family members. The 2009 amendments further expand the FMLA rights of military family members first instituted in January 2008 when President Bush signed into law the National Defense Authorization Act which also amended the FMLA. 2008 National Defense Authorization Act
The first change allows eligible employees to use their 12 weeks of FMLA leave for a qualifying exigency if an employees spouse, child, or parent is called to active military service. Leave may be taken for any qualifying exigency arising out of the fact that a covered military member is on active duty or call to active duty status. Importantly, however, active duty or call to active duty status refers to a member of the National Guard or Reserves, not to service members in the Regular Armed Forces. The Department of Labors regulations include a broad list of activities that are considered qualifying exigencies and permit eligible employees to take FMLA leave to address the most common issues that arise when a covered military member is deployed. These include attending military-sponsored functions, making appropriate financial and legal arrangements, and arranging for alternative childcare. The regulations provide that qualifying exigency leave may be taken on an intermittent or reduced leave schedule basis.
The second FMLA modification under the 2008 amendments requires employers to provide up to 26 weeks of unpaid leave to employees whose child, parent, spouse, or next of kin suffers a serious injury or illness in the line of duty while on active duty in the Armed Forces. Employees may use this leave to care for the covered service member while he or she is undergoing medical treatment, recuperation, or therapy for that serious illness or injury. An eligible employee is entitled to take up to 26 workweeks of leave during a single 12-month period. Military caregiver leave extends to those seriously injured or ill members of both the Regular Armed Forces and the National Guard or Reserves. A serious injury or illness is an injury or illness incurred by a covered service member in the line of duty on active duty that may render the service member medically unfit to perform the duties of the members office, grade, rank, or rating. 2009 Department of Defense Authorization Law (DOD Authorization Law) The Obama legislation, which took effect immediately, further expands the FMLA rights of military family members and fills in several gaps in coverage left open by the Bush legislation:
Qualifying exigency leave entitlement now includes family members of the regular Armed Forces, not just members of the National Guard and Reserves. The DoD Authorization Law amends the FMLA to allow covered family members to take exigency leave for exigencies that occur during the deployment of the member with the Armed Forces to a foreign country.
Service member family leave has been expanded to include recent veterans. The DoD Authorization law amends the FMLA to include veterans with a serious injury or illness. Thus, a veteran will be a covered service member under the FMLA if: (1) he or she is undergoing medical treatment, recuperation, or therapy for a serious injury or illness that was incurred by or aggravated while on active duty in the Armed Forces, whether or not the illness manifested itself before or after the member became a veteran; and (2) he or she was a member of the Armed Forces, National Guard, or Reserves at any time during the five-year period before he or she began the treatment, recuperation or therapy. Significantly, this amendment should provide FMLA coverage for qualified family members to care for veterans with conditions such as posttraumatic stress disorder and other hard to diagnose conditions such as Gulf War syndrome.
Finally, the DoD Authorization Law includes in the definition of serious health condition any injury or illness that existed before the beginning of the members active duty and was aggravated by service in line of duty on active duty. Thus, military caregiver leave is now available to cover situations where a preexisting serious injury or illness is aggravated by active duty service.
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