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Troops and Veterans Get Protections: Obama, NDAA 2010 and the Expanding FMLA

On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 [NDAA 2010]. During the bill signing ceremony, President Obama stated that the law “reaffirms our commitment to our brave men and women in uniform and our wounded warriors. It expands family leave rights for the family members of our troops and veterans.” Specifically, the NDAA 2010 amends the FMLA by expanding the military family leave entitlements for qualifying exigency leave and military caregiver leave. These leave entitlements were first enacted in 2008 by President Bush, which were the first amendments of the FMLA since it was enacted in 1993.

There are four basic changes to the FMLA included within the NDAA 2010. The amendments essentially expand the FMLA’s military family leave provisions to all servicemembers. Exigency leave has also been extended to service in a foreign country as opposed to the prior limitations as to contingency operations. In addition, the servicemembers covered under military caregiver leave has been expanded to include both current and former servicemembers under certain circumstances as well as expanding the definition of a serious health condition.

The Family and Medical Leave Act of 1993

As originally enacted on August 5, 1993, the FMLA required companies with 50 or more employees within a 75 mile radius, all public agencies, and all public and private elementary and secondary schools to grant eligible employees unpaid leave for the birth or placement of a child or for a serious health condition involving the employee or certain family members. To be eligible, employees must have worked for their employer at least 12 months and completed at least 1,250 hours of work. The period of unpaid leave consisted of up to 12 work weeks in a year period. As part of the requirements, covered employers were also required to maintain group health benefits during FMLA leave on the same terms as if the employee remained at work. FMLA leave includes certain job protections, including that an eligible employee be restored to the same or an equivalent job with equivalent pay, benefits, and other conditions of employment upon return from FMLA leave. The Department of Labor published regulations that were originally effective on April 6, 1995 and were in the format of questions and answers.

Expansion of the FMLA Under the National Defense Authorization Act of 2008

On January 28, 2008, President Bush signed the National Defense Authorization Act of 2008 [2008 Amendments]. The 2008 Amendments contained significant changes to the FMLA, including extending leave entitlements to eligible employees under two additional qualifying events: qualifying exigency leave and military caregiver leave. The Department of Labor published the final rules for implementation of the FMLA and the 2008 Amendments on November 17, 2008, which became effective on January 16, 2009. Unlike the prior regulations, the new regulations were published in a form consistent with the format of regulations in the Code of Federal Regulations.

Under the 2008 Amendments, eligible employees were permitted to take up to 12 weeks of leave for a qualifying exigency, which was defined to include short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and any other service-related activity that the employer and employee agreed was a qualifying exigency. In addition, the 2008 Amendments provided that eligible employees were permitted to take up to twenty-six workweeks to care for a spouse, son, daughter, parent or “next of kin” who is a member of the Armed Forces, including the National Guard or Reserves, who suffered a serious injury or illness in the line of duty and who were (i) undergoing medical treatment, recuperation, or therapy, (ii) in an outpatient status, or (iii) on a temporary disability retired list. The regulations specifically excluded former members of the Armed Forces from coverage under military caregiver leave. A serious injury or illness was defined as one which that may render the covered servicemember medically unfit to perform duties consistent with their office, grade, rank or rating.

The qualifying exigency leave regulations from the Department of Labor contained a curious restriction. The leave only applied to the spouse, son, daughter, or parent of an employee who was on active duty in the National Guard or Reserves and who had been notified of an impending call to active duty in support of a contingency operation. The regulations specifically excluded members of the regular armed forces from qualifying exigency leave coverage.

Expansion of Exigency Leave Under the NDAA 2010

The NDAA 2010 substantially expands the scope of qualifying exigency leave, both as to the nature of the qualifying exigency as well as the number of military servicemembers who will now be covered. Qualifying exigency leave is no longer limited to “contingency operations.” Under the implementing regulations to the 2008 Amendments, the Department of Labor indicated that it would be “fairly easy” for employees to demonstrate their eligibility for leave by supplying a copy of the servicemember’s active duty orders that would indicate their mobilization for a contingency operation pursuant to Title 10 of the United States Code. Under the NDAA 2010, this restriction as to contingency operations is no longer applicable. Instead, exigency leave has been expanded to cover deployments of servicemembers to any foreign country or to servicemembers who have been notified of an impending call to active duty in a foreign country. To the extent that any confusion existed as to the nature of contingency operations or interpretation of active duty orders, this has been eradicated by amendments in the NDAA 2010.

In addition, the NDAA 2010 has expanded qualifying exigency leave to apply to all military service members, both those assigned to the regular armed forces and the reserve components. This change addresses the anomaly that existed under the implementing regulations by the Department of Labor to the 2008 Amendments, which excluded regular armed forces from coverage under the leave provisions. With these changes, all members of the armed forces deployed to a foreign country will be covered servicemembers under the FMLA.

Expansion of Military Caregiver Leave Under the NDAA 2010

The NDAA 2010 also expands the number of "covered servicemembers" whose family members will be eligible for military caregiver leave. Under the 2008 Amendments, military caregiver leave was only available to care for current members of the regular armed forces and reserve components. The NDAA 2010 greatly expands this coverage. Under the NDAA 2010, employees are entitled to take military caregiver leave to care for a covered servicemember who is undergoing medical treatment, recuperation or therapy at any time during a period of five years after the covered servicemember was discharged from the military.

The NDAA 2010 has also expanded the definition of a "serious injury or illness." Under the 2008 Amendments and implementing regulations, preexisting conditions were not covered. The definition has now been expanded to include not only an injury or illness incurred in the line of duty, but also an injury or illness that was incurred by the covered servicemember before the member's active duty, but that was aggravated by service in the line of duty while on active duty. Under this definition, illnesses and injuries would be covered even if they were manifested before or after the covered servicemember became a veteran, including injuries or illnesses that may take months or years to manifest.

Implementing Regulations

The NDAA 2010 directs the Department of Labor and the Office of Personnel Management to consult with the Secretary of Defense and the Secretary Veterans Affairs to promulgate regulations. The NDAA 2010 amendments, however, became effective upon the President’s signature and are currently effective. Under the Semiannual Agenda of Regulations published by the Department of Labor in the Federal Register on April 26, 2010, the Department indicated that it was reviewing implementation of the amendments, with a timetable for action anticipated in November of 2010.

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