For the second time in the last two years, Congress has expanded the scope of the Family and Medical Leave Act (“FMLA”). On October 28, 2009, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (the “Act”). The Act amends the FMLA to expand the two new types of leave— qualifying exigency leave and military caregiver leave—that first were created as part of the National Defense Authorization Act for Fiscal Year 2008. These new provisions are effective immediately. See the Vedder Price LABOR LAW BULLETIN from February 4, 2008, for a description of the 2008 changes.

Qualifying Exigency Leave.

The FMLA, as amended in 2008, allows eligible employees to take up to 12 weeks of leave each year for a “qualifying exigency” arising out of a family member’s active duty or call to active duty as a member of the National Guard or Reserves in support of a declared “contingency operation.” The Act expands this type of leave to cover those serving on active duty in any regular component of the Armed Forces (i.e., Army, Navy, Air Force, Marines), who are deployed in a foreign country.

Military Caregiver Leave.

The Act also expands the FMLA’s military caregiver provisions to cover veterans. The FMLA allows eligible employees to take up to 26 weeks of leave to care for a member of the Armed Forces, National Guard or Reserves who is undergoing treatment for, or recuperating from, a serious injury or illness incurred in the line of duty while on active duty. As amended, the Act allows eligible employees to take leave to care for any former member of the Armed Forces, National Guard or Reserves during the first five years following his or her discharge from military service if the veteran is undergoing treatment for, or recuperating from, a serious injury or illness incurred in the line of duty while on active duty. The Act also expands the definition of “serious injury or illness” for military caregiver leave to include injuries and illnesses that are “aggravated by” active duty service.

As noted above, these new provisions are effective immediately. Employers that are subject to the FMLA (generally those with 50 or more employees) should update their FMLA policies, procedures and administrative forms accordingly. In addition, employers that are using the Department of Labor’s model FMLA notices should begin using the updated models as soon as they become available.