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The FMLA Expands Again, and So Must Your Policies and Forms

Labor & Employment Law Alert Mike Fischer, Ellen Girard Georgiadis, Otto W. Immel

Although most employers have only recently revised their FMLA policies and forms in response to the Department of Labor's new FMLA regulations this year, it's too early to cast those changes in bronze.

Last Wednesday, President Obama signed the 2010 National Defense Authorization Act ("the NDAA"), which made further changes to the FMLA that will require additional revisions to FMLA policies and forms. These latest changes concern both types of family military leave: military exigency leave and military caregiver leave. The FMLA revisions are effective immediately.

Qualifying Exigency Leave

In the FMLA regulations finalized this past January, military exigency leave allowed an FMLA-eligible employee to take up to 12 weeks of short-term absences when a spouse, child or parent in the National Guard or Reserves is called to active duty or is on active duty.

Qualifying exigencies include matters that arise because of a qualifying family member's deployment, including emergency childcare arrangements and a child's school activities, financial or legal arrangements, attending certain counseling sessions, short periods during which a qualifying family member is on rest and recuperation leave from active deployment, attending certain military events such as post-deployment reintegration briefings, and any matters arising out of a short-term deployment (i.e., a deployment for which an employee's spouse, child or parent receives seven or fewer calendar days of notice of the deployment).

Under last week's NDAA, military exigency leave becomes available whenever a qualifying family member is in the Armed Forces-even if that family member has chosen military service as a career-rather than being limited to situations involving family members in the Guard or Reserves. The NDAA also expands coverage to any situation in which a qualifying family member is on active duty in a foreign country, rather than being restricted to situations in which the family member is on active duty in support of a contingency operation, as is the case under the current FMLA regulations.

Military Caregiver Leave

In the FMLA regulations finalized this past January, military caregiver leave allowed an FMLA-eligible employee to take up to 26 weeks of FMLA leave to care for a parent, child, spouse, or next of kin who incurred a "serious injury or illness" while serving in the military that rendered the servicemember unable to perform his or her military duties. Significantly, leave under the January regulations was only available to care for servicemembers who, despite being seriously injured, remained in the military, even though they were unable to perform regular military duties as a result of the serious injury or illness.

Last week's NDAA amendment expands military caregiver leave in two ways.

First, military caregiver leave is now not only available to care for qualifying family members who are still in the military, but also is available to care for qualifying family members who are veterans receiving treatment, recuperation or therapy for a serious injury or illness. The veteran must have been other than dishonorably discharged and must have served in the military at some point within the five preceding years.

Second, the definition of a qualifying "serious injury or illness" has been expanded to not only include those illnesses and injuries incurred while in the line of duty and on active duty, but also preexisting illnesses and injuries aggravated by such service.

Last January's regulations defined a "serious injury or illness" as one rendering the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating; reflecting the law as it then existed, such a definition was focused on still active servicemembers.

Last week's expansion of the FMLA authorizes the Department of Labor to define what constitutes a sufficiently severe injury or illness for a veteran. That definition will presumably encompass latent physical conditions involving exposure to certain toxins, as well as service-induced mental disorders such as post traumatic stress syndrome. It is unclear at this point whether and how the Department of Labor will distinguish between a veteran's "serious injury or illness" (allowing an eligible family member up to 26 weeks of FMLA leave in a 12-month period to care for the veteran) and a veteran's "serious health condition" (under which the customary 12 weeks of FMLA leave would be available).

Lessons for Employers

While it is anticipated that the Department of Labor will eventually provide a new FMLA poster as well as updated regulations and modified certification forms, employers don't have the luxury of waiting for such goodies to arrive in the mail from Washington. The expanded FMLA is already in effect, and it has dramatically widened the number of qualifying family members in relation to whom an employee can qualify to take leave.

Employers covered by the FMLA should therefore update their policies now to reflect this expansion of coverage. Employers will also need to amend the certification forms they use for military exigency leave and military caregiver leave 

If you have questions regarding this most recent expansion of FMLA leave or any other FMLA matters, or if you would like assistance in revising your forms and policies to reflect these latest changes to the FMLA, please contact Mike Fischer at 414-277-5639 / mike.fischer@quarles.com, Ellen Girard at 312-715-5051 / ellen.girard@quarles.com, Otto Immel at 239-659-5041 / otto.immel@quarles.com or any other member of the Quarles & Brady Labor and Employment Law group.