Military Caregiver FMLA Leave Modified
by Darrell R. VanDeusen
When the President signs the National Defense Authorization Act of 2010 (NADA) on October 28, 2009, there will be changes made to the military caregiver requirements of the Family and Medical Leave Act. The amendments implement bills pending in both houses (H.R. 3403, S. 1543).
The NADA directs the DOL and OPM to work with the Secretaries of Defense and the Veterans Administration in crafting regulations to implement the amendments. It is unclear whether the changes will be effective upon signing or when regulations are issued.
Section 565 of the NDAA will change the military caregiver provisions of the FMLA in a number of ways:
- Military caregiver leave has been only available to care for current members of the Armed Forces, Guard, or Reserves. Now eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces or the Reserves within 5 years of the date a veteran undergoes medical treatment, recuperation, or therapy.
- DOL regulations have excluded the “aggravation of existing injuries incurred in the line of duty while on active duty” as a basis for taking military caregiver leave. Only if a serious injury or illness rises to the level of a subsequent injury or illness has an employee been entitled to take military caregiver leave for the same covered servicemember. Caregiver leave will now cover the aggravation of existing or preexisting injuries incurred in the line of duty while on active duty.
- Qualifying exigency leave has been available only for covered military members in the Reserves or National Guard. Now, qualifying exigency leave will cover members of the regular Armed Forces who are deployed to a foreign country.
- Federal employees covered by Title II of the FMLA have not had the right to take qualifying exigency leave. The amendments extend qualifying exigency leave to federal employees covered by Title II of the FMLA.
Employers should review and revise their FMLA policies to reflect these changes.
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