• Amendments to the Family and Medical Leave Act
  • December 2, 2009 | Author: Chad C. Almy
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2010 (H.R. 2647) into law. The Act builds upon the NDAA for FY 2008 which amended the Family Medical Leave Act (FMLA) by granting up to 12 weeks of exigency leave for employees with urgent needs related to the call to active service of a reservist or National Guard family member. The NDAA for FY 2010 modifies this provision by extending the exigency leave to family members of servicemen and women already on active duty as well. Qualifying exigency leave must fit into at least one of the following categories:

    • When the service member has received a week or less in notice of deployment;
    • For military events and related activities;
    • For urgent (as opposed to recurring and routine) child-care and school activities;
    • For financial and legal tasks to deal with a family member’s active duty;
    • For counseling for the employee or child who isn’t already covered by FMLA;
    • To spend time with the covered service member on rest and recuperation breaks during deployment;
    • For post-deployment activities; and
    • For other purposes arising out of the call to duty, as agreed upon by the employee and employer.

    Employees seeking qualifying exigency leave must give reasonable and practicable notice if the exigency is foreseeable. The notice must inform the employer that a family member is on active duty or called to active duty status, cite a listed reason for leave, and give the anticipated length of absence. Family members generally are defined broadly and include a spouse, parent, son, daughter, or next of kin. A son or daughter on active duty includes an employee’s biological, adopted, or foster child, stepchild, legal ward, or one for whom the employee stood in loco parentis, regardless of age.

    The NDAA for FY 2010 also expands the NDAA for FY 2008 with regard to eligibility for caregiver leave as well. The NDAA for FY 2008 granted up to 26 weeks of leave to an employee to care for a family member injured while serving on active military duty. The NDAA for FY 2010 includes leave for employees to care for family members who are currently veterans undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred any time during the five years preceding the date of treatment.

    All provisions of the NDAA for FY 2010 were considered effective upon their enactment on October 28, 2009.