Labor & Employment Law — 10/26/09

Senate passes DOD Authorization bill, includes revisions to FMLA military family leave provisions

On October 22, 2009, the Senate voted 68 to 29 to approve the conference report (H. Rept. 111-288) to the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647), which contains provisions expanding the Family and Medical Leave Act (FMLA) of 1993’s military family leave entitlements. The House approved the conference report October 8 in a 281-146 vote. The President is expected to sign the bill into law.

Expanding on the FY 2008 National Defense Authorization Act (NDAA) (P.L. 110-181), and mirroring the provisions of the recently introduced Supporting Military Families Act of 2009 (S. 1543/H.R. 3403) the bill would extend the military caregiver leave provision to veterans. Caregiver leave provides eligible employees, who are the spouse, son, daughter, parent or next of kin of covered servicemembers in the Armed Forces, including members of the National Guard or Reserves, are entitled to 26 workweeks of leave during a 12-month period to care for that servicemember, who because of a serious injury or illness, is undergoing medical treatment, recuperation, or therapy, otherwise in outpatient status, or is otherwise on the temporary disability retired list. The bill would extend the 26 weeks of leave to family members of veterans for up to five years after a veteran leaves service, if he or she develops a service-related injury or illness that was incurred, or, in the case of an existing injury, was aggravated, while on active duty.

The bill would also expand exigency leave available under the FMLA to eligible family members of active-duty service members. The NDAA, which was signed into law by President Bush on January 28, 2008, also amended the FMLA to provide eligible employees with up to 12 workweeks of leave during any 12-month period for certain qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent (i.e., the covered military member) is on active duty (or has been notified of an impending call or order to active duty) in the National Guard or Reserves in support of a contingency operation. The Department of Labor’s FMLA regulations relating to qualifying exigency leave limited access to the leave to Reserve and National Guard members only. The bill would also extend exigency leave to cover active duty members in the regular service as well. Qualifying exigency leave includes: short-notice deployment; military events and related activities; child care and school activities; financial and legal arrangements; counseling, rest and recuperation; post-deployment activities; and any other event the employer and employee agree is a qualifying exigency.

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