New FMLA Provisions For Military Families: Companies Must Modify Their Policies To Comply

On October 28, 2009, President Obama expanded the military leave provisions of the Family and Medical Leave Act (FMLA) when he signed the National Defense Authorization Act for Fiscal Year 2010. Employers will, once again, need to modify their FMLA policies to ensure full compliance with the law. 

To understand these changes, it is useful to review the law as it stood previously. Nearly two years ago, in January 2008, the FMLA was amended to include two types of military leave: (1) qualifying exigency and (2) military caregiver:  

  • Qualifying exigency (QE) leave covered employees who were the spouse, child, or parent of a service member in the Reserves or National Guard and allowed time off to deal with issues arising out the service member’s active duty or impending call to active duty — issues such as arranging for child care or making or updating financial or legal arrangements. QE leave was restricted to military personnel involved in a "contingency operation," i.e., one that "is designated by the Secretary of Defense as an operation in which members of the Armed Forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force," or "results in the call or order to, or retention of, active duty of members of the uniformed services."
  • Military caregiver (MC) leave covered employees who were the spouse, child, parent, or next of kin of a service member and allowed time off to help the service member recover from a serious illness or injury sustained while on active duty. MC leave included all branches of the Armed Forces.

Under the amendments that just went into effect, both types of leave have been expanded. QE leave is no longer restricted to members of the National Guard or Reserves and now includes any member of the Armed Forces. In addition, it is no longer restricted to contingency operations and now includes any call to active duty in a foreign country. MC leave now includes both military service members on active duty as well as veterans.  

What This Means
Employers need to update their FMLA policies, revise their employee handbooks accordingly, and ensure that human resources personnel and managers responsible for administering the FMLA are aware of the changes. In addition, while there is no express requirement to do so, employers should notify their employees of the changes to the law. As they become available, employers should also obtain and display new FMLA posters.

If you would like more information about these changes or need help revising your policies, please contact Joseph L. Edwards, Jr., the author of this Alert, at 617 456 8131 or jedwards@princelobel.com.