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FMLA Military Amendments Update

In October 2009, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act (NDAA), which included additional exigency and caregiver leave provisions for military families under the Family & Medical Leave Act (FMLA). The NDAA amended the military leave provisions of the FMLA, which were adopted in 2008. The changes took effect immediately.

The exigency leave benefit (of up to 12 weeks) are now available to family members of active duty service members in the U.S. Armed Forces who are deployed to a foreign country. Formerly, this exigency leave was available only to family members of National Guard members and reservists.

In addition, under the NDAA, the caregiver leave benefit (of up to 26 weeks) now includes leave to take care of a child, spouse, parent or next of kin who (1) is a veteran, (2) is undergoing medical treatment, recuperation or therapy for serious injury or illness, and (3) was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five years preceding the date of treatment. The medical treatment must be related to a serious injury or illness incurred while in the line of duty on active duty in the Armed Forces, or which existed before the beginning of military service and which was aggravated by service in the line of duty while on active duty.

Unfortunately, the DOL's certification forms for qualifying exigency leave (Form WH-384) and military caregiver leave (Form WH-385) have not yet been updated to reflect the NDAA amendments. Use of the current DOL forms could potentially cause employers to violate the amended FMLA and deny leave to an employee who is actually eligible for leave.

Under the current state of the law, FMLA leave is available to certain family members of a "covered service member" who is undergoing medical treatment or other assistance with respect to a "serious injury or illness." Eligible employees are permitted up to 26 workweeks in a 12-month period on a "per-covered-servicemember, per-injury" basis. The NDAA amendments expand the definition of "covered service member" so that it now includes "a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy." Previously, veterans were not included. The NDAA also expanded the definition of a "serious injury or illness" to include injuries that were aggravated while a military service person or veteran was on active duty. Prior to the NDAA, veterans and aggravations of injuries or illnesses were not covered.

The NDAA redefined "covered military members" to include those serving in the regular Armed Forces, and "covered active duty" so that it is no longer limited to "contingency operations." The current DOL Form WH-384 does not reflect this change.

Until the DOL updates its forms, employers should make sure that they provide FMLA military leave in compliance with the FMLA as amended by the NDAA. Terminating an employee for absences that could qualify for FMLA military leave under the NDAA amendments could result in significant legal liability.

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