Family Leave for Military Exigency, Caregivers
H.R. 2647 Expands Family and Medical Leave Act Coverage
Nov 7, 2009
The global purpose of H.R. 2647, the National Defense Authorization Act for Fiscal Year 2010, is "to authorize appropriations for fiscal year 2010 for military activities of the Department of Defense, to prescribe military personnel strengths for fiscal year 2010, and for other purposes."
One of these "other purposes" is to mandate additional coverage of the federal Family and Medical Leave Act (FMLA) for covered military-related employees of private employers of 50 or more employees, public agencies and private and public schools.
H.R. 2647 amends FMLA to provide protected leave “because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty)” in a foreign country, and for caregiver leave for an injured or ill military veteran.
Covered Exigency Leave
Prior to H.R. 2647, covered exigency leave was allowed only for employees with a covered family member in the National Guard or Armed Forces Reserves for "contingent operations". Now, FMLA of up to 12 weeks annually must be provided for the exigent circumstance of a covered family member being called to active duty to a foreign country, whether the family member is already a regular member of the Armed Forces or being called up from the Reserves or Guard.
Exigent circumstances for military were previously added to FMLA in 2008 as grounds for leave for family members in the National Guard. H.R. 2647 expands this leave right to encompass active servicemembers being deployed overseas, in response to the government's stepped up Afghanistan and Iraq troop missions.
As stated in the 2008 FMLA revision, some examples of covered exigent leave circumstances include the following, which recognize the type of situations that typically consume a family's attention to organize and prepare for the changes caused by the military deployment of the immediate family member:
- Military events and related activities in connection with the deployment
- Childcare and school activities
- Financial and legal arrangements
- Counseling
- Rest/recuperation
- Post-deployment activities, meetings
- Any other events related to deployment
Covered Caregiver Leave
The new law also covers “servicemember caregiver leave". This category of FMLA leave gives a covered employee FMLA rights up to 26 weeks of excused time off to care for a servicemember veteran family member.
The new law defines a “covered servicemember” for caregiving purposes as follows:
- “ a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
- 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.'”
Implications
Employers should be sure to update their FMLA policies to include the provisions of the new law.
Employees should understand they may have rights under FMLA when a parent, child, or spouse is deployed to foreign active service or has sustained an illness or injury in such service and up to five years thereafter.
Additional Sources:
29 CFR 825.126 (Examples of military leave “qualifying exigency” - watch Federal Register for updates).
U.S. Department of Labor, at dol.gov
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