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November 06, 2009
New FMLA Expansion: Employers Should Act Now

President Barack Obama last week signed legislation that makes several changes to the family military leave provisions of the Family and Medical Leave Act. Employers should act now to make the necessary changes.

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The National Defense Authorization Act for 2010 (HR 2647) expands an employee's right to family military leave for an “exigency” associated with a family member's call to service in a foreign country. Under the new law, employees with a family member who is either in a regular component of the Armed Forces or a reserve component of the Armed Forces will entitled to “exigency leave.” Before the latest legislation, “exigency leave” was limited to employees with a covered family member in the National Guard or reserves only. Plus, the “old” law covered “contingency operations” only, which were defined specifically by regulation.

The new law also makes changes to the military servicemember caregiver leave provisions of the Family Medical Leave Act. The new legislation entitles employees to take up to 26 weeks of FMLA leave to care for a family member who is a servicemember or veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy. Previously, the 26 weeks of leave applied to employees caring for active military servicemembers only and not veterans.

The National Defense Authorization Act became effective once Obama signed it, so employers should begin to make changes immediately to comply with the new law.

BLR expects that the U.S. Department of Labor will take steps to change the government-issued FMLA's family military leave certification forms (the WH-384 and WH-385) soon. Until then, employers may continue to use the existing forms and make any necessary notation on the form regarding the new rules.

BLR also expects that the Department of Labor will issue new regulations addressing the recent changes to the family military leave provisions of the FMLA.

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