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LABOR & EMPLOYMENT LAW — 10/29/09

President signs FY 2010 National Defense Authorization Act, includes revisions to FMLA military family leave provision

On October 28, 2009, President Barack Obama signed the FY 2010 National Defense Authorization Act (NDAA) (H.R. 2647) into law. The law contains provisions amending the Family and Medical Leave Act of 1993’s (FMLA) military family leave entitlements. The Senate voted 68 to 29 to approve the Act on October 22 and the House approved the Act October 8 in a 281-146 vote.

During a bill signing ceremony in the White House Rose Garden Obama said: “As Commander-in-Chief, I will always do whatever it takes to keep the American people safe, to defend this nation. And that’s why this bill provides for the best military in the history of the world. It 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.”

Expanding on the FY 2008 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 law extends the military caregiver leave provision to veterans. Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard or Reserves. 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 law extends the 26 weeks of leave to family members of veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness at any time during the period of five years preceding the date on which the veteran undergoes that treatment (i.e., the caregiver would be able to take up to 26 weeks of leave to care for a veteran for up to five years after the servicemember leaves military service).

The law also expands 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 law also extends 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.

The law directs the US Department of Labor and the Office of Personnel Management to consult with the Secretary of Defense and the Secretary Veterans Affairs when prescribing regulations. Because the law does not include an effective date, the amendments will likely take effect immediately upon the President’s signature. The law would also allow employees covered by the Federal Employees Retirement System to receive credit for unused sick leave toward their retirement annuity.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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