On October 28, 2009, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (“2010 NDAA”) that includes the following provisions expanding the Family and Medical Leave Act (“FMLA”) rights of the family of military personnel:

• The 2010 NDAA expands FMLA qualifying exigency leave to cover members on active duty in a foreign country.  Previously, qualifying exigency leave was only available for family members of members of the Reserves or National Guard called to active duty. 
• The 2010 NDAA allows eligible employees to take FMLA caregiver leave for a veteran who served in the Armed Forces at any time during the five (5) years from the date the veteran undergoes medical treatment, recuperation and therapy for a serious injury or illness.  Prior to this legislation, the law was silent as to an employee’s entitlement to take leave to care for a veteran whose service-connected injury or illness first manifested after the veteran ended active duty. 
• The 2010 NDAA expands military caregiver leave to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty.  The Department of Labor regulations previously excluded aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave.

Regulations to help with carrying out these new amendments are to be formulated by the United States Department of Labor and Office of Personnel Management and the Secretaries of Defense and Veterans Administration. 

The 2010 NDAA is effective immediately.  We urge all employers to amend their FMLA policies to incorporate this expansion of FMLA coverage for the family of military personnel.

Obermayer attorneys are available to assist you amend your FMLA policy and to answer questions regarding the 2010 NDAA.

The information contained in this article should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.