On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 into law. Section 565 of the bill expands the Family and Medical Leave Act's (FMLA) military family leave requirements.

The FMLA, which was originally enacted in 1993, requires employers with 50 or more employees to provide eligible employees up to 12 weeks of unpaid leave during a 12 month period. Employees may take the leave for the birth, adoption, or foster care placement of a child, an employee's own serious health condition or to care for a spouse, child, or parent with a serious health condition. In 2008, the FMLA was amended to permit qualifying employees to take up to 12 weeks of unpaid leave in a 12 month period for a “qualifying exigency” arising from the active duty deployment of an employee's spouse, child, or parent that serves in the Reserves or National Guard. The 2008 amendments also required employers provide eligible employees up to 26 weeks of unpaid leave to care for a spouse, child, parent or next of kin with an injury or illness incurred in the line of active military duty.

As a result of the recent 2009 amendments, qualifying exigency leave now is available for eligible family members of the regular Armed Forces as well as National Guard or Reserves. The new law also requires covered employers provide leave for the family of any service members deployed to a foreign country. Previously, the law only required employers provide the exigency leave to families of Guard or Reservists deployed in support of a contingency operation.

The new law also expands the military caregiver leave provisions in the FMLA. Now, covered employers must provide the caregiver leave to family members of veterans undergoing treatment, recuperation or therapy for an injury, as long as the veteran was a member of the Armed Forces, National Guard or Reserves within five years of needing care. In addition, under the new law, eligible employees may use the leave to care for a covered service member's serious injury or illness that existed prior to active duty, if the injury or illness was aggravated in the line of active duty. Previously, the law only allowed caregiver leave for serious illnesses or injuries incurred on active duty.

The Department of Labor has 120 days from the new law's effective date (October 28, 2009) to modify existing regulations to conform with the new requirements. Employers should review their FMLA leave policies and modify them to reflect requirements of the new law.

Jackson & Campbell, P.C.'s Employment Law Practice Group can assist you interpret FMLA rulings, as well as provide counsel on other related employment matters.