The Family and Medical Leave Act provides for job protected unpaid leave for the birth, adoption, or foster care placement of a child, an employee’s serious health condition, or to care for a parent, spouse or child with a serious health condition. The FMLA generally applies to employers with 50 or more employees, and to employees who have been employed by that employer for 12 months, whoworked 1,250 hours in the 12 months prior to the requested leave, and who work at a facility with 50 or more employees within a 75 mile radius.
In January 2008 (regulations were published in support in January 2009), the FMLA was amended to allow for up to 12 weeks of unpaid leave for a qualifying exigency arising out of the deployment to active duty of an employee’s parent, child or spouse (exigency leave). It also added up to 26 weeks of leave to care for a family member who is injured while serving on active military duty (military caregiver leave).
On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010(NDAA), which included a further expansion of the FMLA for military-related situations. Under the new law, military caregiver leave has been expanded, both as to who and what qualifies for the leave:
● Employees can take military caregiver leave (up to 26 weeks) to care for a family member who is a member of the Armed Forces (including the National Guard or Reserves) and who is undergoing treatment, recuperation, or therapy for a serious injury or illness, or for a family member who is a veteran of the Armed Forces for such an injury or illness for up to five years after their separation from the military. Prior to this, thecaregiver leave was only for family members still in the military, there was no caregiver leave for veterans.Veterans are now covered for five years after they leave the military.
● Military caregiver leave is also now extended to care for a family member (active duty or veteran as noted above) with a qualifying injury or illness that was incurred in the line of duty on active duty or which existed prior to the beginning of the member’s active duty andwas aggravated by service in the line of duty on active duty in the Armed Forces, whether such injury or illness manifested itself before or after the member became a veteran.Prior to this, the caregiver leave was only for injuries or illnesses suffered on active militaryduty. There was no coverage for an injury or illness that existed prior to service even where it was aggravated by that service.
Military exigency leave has also been modified:
● Exigency leave can be taken (up to 12 weeks) when an employee’s parent, child or spouse is deployed to a foreign country. Prior to this, itallowed suchleave only when the family member was called to active duty, not when deployed overseas.
● Exigency leave (up to 12 weeks) can also be taken when a family member is a member of the National Guard or Reserves and is called to active duty in a foreign country. Prior to this, such leave was provided where the family member was called to active duty "in support of a contingency operation." The new language "in a foreigncountry" clarifies and replaces the "in support of a contingency operation"language.
Employers must do several things based on these changes.
1.It is effective immediately, so employers must grant leave based on these changes going forward.
2.Employers must amend their FMLA policies to accurately reflect these changes.
3.A new FMLA poster is not yet available. When it is, the new poster should be downloaded or posted. Until then, I suggest you print this email, cut out the bullet points above, and post the above changes on your bulletin board.
4.Because of the Notice requirements, and the fact that any previous notice you provided to your employees is no longer accurate, I suggest that you provide a list of the above changes to all employees so that they have the most up-to-date revisions to the FMLA.
If you have any questions about the Family and Medical Leave Act, please contact Scott Leah at (412) 594-5551 or sleah@tuckerlaw.com.
