Defense Bill Expands FMLA “Qualifying Exigency” and Military Caregiver Leave

November 24, 2009

On Oct. 28, 2009, President Obama signed a defense spending bill into law that contained important new amendments to the Family and Medical Leave Act (FMLA). The National Defense Authorization Act for Fiscal Year 2010 (NDAA 2010) expands FMLA provisions relating to “qualifying exigency leave” and military caregiver leave, both of which now include time off to care for veterans.

Changes to Qualifying Exigency Leave

Prior to this latest FMLA expansion, an employee eligible for FMLA leave could take up to 12 weeks of FMLA leave during a 12-month period because of any “qualifying exigency” arising from the employee’s spouse, child or parent being on active duty or called to active duty in the National Guard or as a reservist in the Armed Forces in support of a military “contingency operation.” Qualifying exigencies include leave to address issues surrounding short-notice deployment, military events and related activities, childcare and related activities, financial and legal activities, counseling, rest and recuperation, and post-deployment activities.

With the passage of the NDAA 2010, the right to take leave for qualifying exigencies has been changed in two important ways.

  1. Qualifying exigency leave is no longer limited to family of National Guard members or reservists. Under the new amendments, family members of any regular component of the Armed Forces are eligible for qualified exigency leave.
  2. The right to take qualified exigency leave is no longer triggered by a family member being on active duty or called to active duty in support of a military “contingency operation.” Now, an eligible employee whose spouse, parent or child is a member of the Armed Forces may take FMLA leave for a qualifying exigency related to the fact that they are deployed with the Armed Forces to a foreign country.

Expansion of Military Caregiver Leave

The FMLA currently requires that employers allow eligible employees to take up to 26 weeks of leave to care for a covered servicemember during a single 12-month period. Under previous law, a covered servicemember for purpose of this leave entitlement was limited to a current member of the Armed Forces, including a member of the National Guard or Reserves, with a serious injury or illness incurred in the line of duty while on active duty. With the passage of the NDAA 2010, covered servicemember is redefined to include veterans with a serious injury or illness. Specifically, a veteran is considered a covered servicemember if he or she meets both of the following:

  • He or she is undergoing medical treatment, recuperation or therapy for a serious injury or illness that was incurred or aggravated while on active duty in the Armed Forces, whether or not the illness or injury manifested itself before or after the member became a veteran.
  • He or she was a member of the Armed Forces, National Guard or Reserves at any time during the five-year period before he or she began treatment, recuperation or therapy. In other words, the FMLA now allows the caregiver to take up to 26 weeks of leave to care for a veteran for up to five years after the servicemember leaves military service.

In addition to expanding military caregiver leave to veterans, the NDAA 2010 also expanded the definition of “serious injury or illness” to include care for covered servicemembers whose preexisting injury or illness was aggravated in the line of duty. Previously, the law allowed military caregiver leave only for serious injury or illness incurred while on active duty.

Effective Immediately

While the NDAA 2010 does not have an effective date, employers should presume the new FMLA provisions are effective immediately, except for the new veteran caregiver leave provisions that require action by the Secretary of Labor before effective. FMLA policies and forms should be updated immediately to reflect the new provisions.

For questions regarding the scope of the new FMLA requirements or assistance updating your current FMLA policies and practices, please contact the author or any other member of McGuireWoods’ Labor & Employment or Employee Benefits teams.