Continuing from last week's Employment Law Update, employees have expanded Family and Medical Leave Act (FMLA) rights in relation to the care of a family member who is a veteran and is undergoing medical treatment or therapy for injury/illness that occurred within the five years preceding treatment. The Fiscal Year 2010 National Defense Authorization Act, which became effective October 28, 2009, expanded the military leave provisions of the FMLA that first became law in January 2008. With respect to the so-called “caregiver leave,” the law now grants eligible employees up to 26 weeks of FMLA leave to care for a family member, (i.e., spouse, son/daughter, parent, or “next of kin”) who is a veteran undergoing medical treatment or therapy for injury/illness that occurred within the five years preceding treatment.

This 26 workweeks of caregiver leave applies to a “single 12-month period.” This period starts when the employee begins the leave, and ends 12 months later, regardless of the 12-month period the employer applies for purposes of other FMLA leaves. During this unique “single 12-month period,” the employee is limited to a combined total of 26 workweeks of leave for any FMLA-qualifying reason. In other words, the military caregiver leave is not additive to the usual 12 weeks of FMLA leave entitlement. But tracking this can get tricky because the military caregiver leave will usually be on a different 12-month tracking period.

The DOL's Fact Sheet #28A provides a summary of both the FMLA's “caregiver leave” as well as the so-called “exigency leave.” (http://www.dol.gov/whd/regs/compliance/whdfs28a.pdf)

For most HR professionals, the nuances of Uniformed Services Employment and Reemployment Rights Act (USERRA) and the details of the new FMLA military caregiver leave are unfamiliar. These simply are not ordinary employment law issues that arise frequently. But, an employer must comply fully or face the prospect of having to defend against the unseemly claims that it is not only non-compliant with an employment law, but unpatriotic as well.