President Obama signed into law the 2010 National Defense Authorization Act (2010 NDAA), which among other things, amends and expands the Military Family Leave provisions of the FMLA.  The FMLA amendments became effective immediately upon the signing of this legislation, October 28, 2009.  

The Military Family Leave provisions of the FMLA were originally enacted in 2008 and consist of two types of leave:  Military Exigency Leave and Military Caregiver Leave.  Under the 2008 legislation, Military Exigency Leave allows family members of those who are called to active duty in the Military Reserves or National Guard up to 12 weeks of leave for “qualifying exigencies” related to the call to duty.  As enacted, Military Exigency Leave was not available to family members of those called to active duty in the regular Armed Forces.  The 2010 NDAA has changed that.  Now Military Exigency Leave is also available to family members of those called to active duty or serving on active duty in the regular Armed Forces. 

As a reminder, according to regulations issued in early 2009 by the U.S. Department of Labor, Military Exigency Leave is available for the following situations: 

• Short notice deployment;
• Attendance at military events and related activities;
• Childcare and school activities that must be covered due to the member’s absence;
• Financial and legal arrangements that must be made for the member’s absence;
• Counseling;
• Rest and recuperation;
• Post-deployment activities;
• Additional activities to address other events related to the member’s military service, as agreed to by both the employer and employee.

The 2010 NDAA also expanded Military Caregiver Leave, which provides eligible employees up to 26 weeks of leave to care for an ill or injured service member in their family.   The 2008 legislation did not specify when the illness had to occur relative to the period of active service.  For example, it was unclear whether leave would be available if the illness or injury was not evident or diagnosed until after the service member’s discharge.  The 2010 NDAA amendments make clear that leave is available to an eligible family member if the service member had been a member of the Armed Forces, National Guard or Reserves, at any time during the five years preceding the date of treatment, recuperation or therapy for which leave is sought. 

What Employers Should Do Now:  Employers should revise their FMLA policies and forms to reflect these FMLA amendments.  Employers should also train and educate their HR and management employees to recognize the new situations covered by FMLA.  For example, employees with family members who have long since ceased to be on active military duty may still have significant FMLA leave rights to assist those family members with medical issues relating to their service.

For further information or assistance contact:

Felicia R. Reid, Partner, San Francisco Office, freid@chklawyers.com, (415) 835-9024, or Kirstin Muller, Partner, Santa Monica Office, kmuller@chklawyers.com, (310) 255-1811.