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FMLA Amended to Expand Military Family Leave Entitlements

November 2009
Tal Marnin

On October 28, 2009, President Obama signed a law that, among other things, expands the military family leave provisions of the federal Family and Medical Leave Act of 1993 ("FMLA"). As such, effective immediately, the military family leave provisions (which had been added to the FMLA in January 2008) provide the following leave entitlements:

Qualifying Exigency Leave Expanded to Cover Members of the Armed Forces: Eligible employees whose spouse, son, daughter or parent is a member of the Armed Forces and/or a reserve component of the Armed Forces on "covered active duty" may use their 12-week FMLA Leave entitlement to address certain qualifying exigencies. Prior to October 28, 2009, such qualifying exigency leave could only be used by employees whose family member is serving in the National Guard or Reserves.
Military Caregiver Leave Expanded to Cover Certain Military Veterans: Eligible employees may take up to 26 weeks of unpaid leave during a "single 12-month period" to care for a "covered servicemember" who is the employee's spouse, son, daughter, parent or next of kin (defined generally as "nearest blood relative"). Such leave, when combined with all other FMLA Leave, may not exceed a combined total of 26 weeks in the "single 12-month period." The new law defines a "covered servicemember" to include both (i) a member of the Armed Forces, including a member of the National Guard or Reserves, and (ii) a veteran who was a member of the Armed Forces, including a member of the National Guard or Reserves, who, in either case (i) or (ii) 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" that was incurred or aggravated by service in the line of duty on active duty (except, in the case of a veteran, he or she must have served in the Armed Forces, the National Guard or Reserves at any time during the five (5) years preceding the date of the medical treatment, recuperation or therapy). Prior to October 28, 2009, such military caregiver leave could only be used by employees whose family member is a current member of the Armed Forces, including a member of the National Guard or Reserves, who was injured in the line of duty on active duty.

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