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More FMLA Amendments Imminent!

The Supporting Military Families Act of 2009 (SMFA), a part of the National Defense Authorization Act for Fiscal Year 2010 (HR 2647), will amend the Family and Medical Leave Act (FMLA) and mandate  exigency leave to all covered active duty members and expand the military caregiver provision to family members of certain former service members.

Rep. Lynn Woolsey (D-Ca.) and Sen. Chris Dodd (D-Cn) co-sponsored and introduced the SMFA on July 30, 2009. The bill then was tacked onto the U.S. Department of Defense authorization.  On October 22, 2009, the Senate agreed to a conference report on the National Defense Authorization Act for Fiscal Year 2010 that included the amendments to the FMLA.  President Obama is reportedly expected to sign the legislation into law.

Covered Active Duty

Under the new law, covered active duty under the FMLA would mean:

  • In the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
  • In the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in Section 101(a)(13)B) of Title 10, United States Code.

References throughout the law to “active duty” would be changed to “covered active duty.” The bill would extend eligibility to those deployed to a foreign country, rather than limiting the availability of exigency leave to those deployed in support of a contingency operation.

One purpose of the SMFA is to correct DOL regulations concerning the FMLA which limited access to exigency leave to Reserve and National Guard members only.  The issue arose based upon the DOL interpretation of the National Defense Authorization Act for Fiscal Year 2008 (NDAA), which amended the FMLA on Jan. 28, 2008, to create an entitlement for up to 12 weeks of leave for the spouse, son, daughter or parent of a person on or about to be on active military duty for any “qualifying exigency.”

In the preface to the DOL regulations, it stated: “Had Congress intended qualifying exigency leave to extend to family members of those in the Regular Armed Forces, it would have provided a different statutory definition that referenced alternative provisions of Title 10 to define ‘active duty.’ . . . In comparison, the provisions of the NDAA allowing an eligible employee to take leave to care for a ‘covered service member’ (also referred to as ‘military caregiver leave’) do provide a broader definition of the military service covered by that entitlement.”

Military Caregiver Leave

As the DOL’s FMLA regulations noted, the NDAA also amended the FMLA to provide caregiver leave for wounded service members for an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member in order to provide up to 26 workweeks of unpaid leave during one 12-month period to care for a wounded service member.

The new FMLA amendments extend the 26 weeks of leave to family members of veterans for up to five (5) years after a veteran leaves service if he or she develops a service-related injury or illness that was incurred or aggravated while on active duty.  In the press release about the Supporting Military Families Act, it was noted that “a number of service-related illnesses and injuries may not manifest themselves until after a service member has left the military.” These illnesses might, for example, include traumatic brain injury and post-traumatic stress disorder.

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