Peacock Tales • Summer 2010

FMLA Update

By Rachel K. Lozosky

The National Defense Authorization Act for Fiscal Year 2010 (2010 NDAA), signed by President Obama on October 28, 2009, expands the FMLA privileges afforded to family members of military service personnel. Prior to 2008, amendments established two categories of circumstances under which military family members are entitled to FMLA privileges. First, employees are entitled to twelve work weeks of leave during any twelve-month period, including on an intermittent basis if necessary, if any of a number of listed “qualifying exigencies” arise while the employee’s spouse, son, daughter, or parent who is a current member of the reserve components of the armed forces, or a retired member of the regular or reserve armed forces, is called to active duty in support of a contingency operation. This category has been extended under the 2010 amendments to include family members who are current members of the regular (as opposed to reserve) armed forces, during deployment to a foreign country, or after notification of impeding call to deployment. For reserve service personnel, the deployment or call to deployment must be in support of a contingency operation and must also be in a foreign country. (For members of the regular armed forces, it is not required that this deployment be in support of a contingency operation.)

The second circumstance which entitles military family members to FMLA privileges is when the employee’s family member sustained a serious injury or illness in the line of duty. An employee is entitled to twenty-six work weeks of leave during any twelve-month period, including on an intermittent basis if necessary, to care for such a family member. The 2010 amendments expand application to include veterans who were members of the armed forces “at any time during the period of 5 years preceding the date on which the veteran undergoes ... medical treatment, recuperation, or therapy.” Finally, the 2010 amendments expand the definition of “serious injury or illness” to include, for current members of the armed forces, serious injuries or illnesses that “existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty” and for veterans, a “qualifying injury or illness” [as that term will be defined by the secretary of Labor] that was incurred or aggravated in the line of duty on active duty,” and that manifested itself before or after the [servicemember] became a veteran.”

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