On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA) of 2010. While the general purpose of the law was to authorize funding for the defense of the United States and its interests abroad, this law contained several amendments to FMLA provisions.
Among other things, NDAA expanded the scope of FMLA for military families that includes:
- Expanded Eligibility: Qualifying exigency leave is expanded to include members of the regular Armed Forces who are deployed to a foreign country. Previously, qualifying exigency leave was only available for covered military members in the Reserves or Guard.
- Veteran Leave: Eligible employees will be able to elect military caregiver leave for those veterans who served in the regular Armed Forces or the Military Reserves within five years of the date the veterans undergo medical treatment,recuperation, or therapy. Previously, military caregiver leave was only available to care for current members of the Armed Forces, Guard, or Reserves.
- Federal Expansion, Title II: The legislation includes qualifying exigency leave for federal employees covered by Title II of the FMLA. Previously, federal employees covered by Title II did not have the right to take qualifying exigency leave.
- Pre-existing Condition Expansion: Military caregiver leave was expanded to cover aggravation of existing or pre-existing injuries incurred in the line of duty while on active duty. Previously, Department of Labor (DOL) regulations did not consider aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave under the FMLA. Previously, the illness or injury had to rise to the level of a subsequent injury or illness to be considered as eligible for the FMLA.
In early 2008, President Bush first amended the FMLA law to provide two new family leave entitlements for military families.
The new law was expanded to provide:
- Qualifying Exigency Leave: Up to 12 weeks of FML leave for certain qualifying exigencies arising out of a covered military member’s active duty status, or notification of an impending call or order to active duty status, in support of a contingency operation, and;
- Covered Servicemember Leave (also called Military Caregiver Leave): Up to 26 weeks of FML in a single 12-month period to care for a covered servicemember recovering from a serious injury or illness incurred in the line of duty on active duty. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FML during the single 12-month period.
In November 2008, the DOL issued the final regulations, which not only addressed these new military entitlements, but also aimed at clarifying existing FMLA rules. After much discussion, the final regulations sought to enhance communication between employees, health care providers, and employers. While these new regulations do provide clarity, there are regular circumstances in which judgment is required. This was the first significant change to the FMLA in more than a decade.