Servicemembers and Their Families May Take Advantage of New Revisions to FMLA Military Leave

By Vance Knapp

At the end of October 2009, the President signed the Supporting Military Families Act of 2009 (H.R. 3403), which includes revisions to the Family and Medical Leave Act's military family leave provisions.  The revisions (1) extend military caregiver leave to family members of veterans, and (2) expand exigency leave available under the FMLA to eligible family members of active duty servicemembers.

Previously, military caregiver leave was only available to the spouse, son, daughter, parent or next of kin of current members of the Armed Forces, National Guard or Reserves.  The revised law extends military caregiver leave to those family members of veterans, provided (1) that the veteran was a member of the Armed Forces (including the Reserves or National Guard) within five years of the veteran's medical treatment; and (2) the serious illness or injury occurred while the veteran was on active duty.  This leave is not available to the relatives of dishonorably discharged servicemembers.  The revised law also provides for caregiver leave if the covered service member's serious injury or illness existed before the beginning of the member's active duty and was aggravated by service in the line of duty in the Armed Forces, National Guard or Reserves.  Dishonorably discharged servicemembers are not covered.

For example, suppose that a veteran of the first Gulf War first had asthma as an adolescent, which was subsequently aggravated by her exposure to biological weaponry during the war.  After the war she joined the Reserves and retired in 2004.  Thereafter, she commenced treatment for the aggravating condition within five years of her retirement from the Reserves.  Under these circumstances, her spouse can take FMLA military caregiver leave.  Once her husband exhausts his leave, her son can take military caregiver leave for his mother, even though his leave is more than five years after she retired from the Reserves, because she began treatment for the aggravated condition within five years of her retirement from the Reserves. 

With respect to exigency leave, the revisions to the FMLA military family leave provision extend to family members of covered active duty service members to help family members manage the servicemembers' affairs while servicemembers are on active duty in a foreign country.  Before this change was made, only family members of National Guard and Reserve service members were entitled to exigency leave under the FMLA.  Now it applies to family members of active duty personnel that are currently serving in a foreign country, as well as the family members of National Guard or Reservists who receive notice of a call to duty in a foreign country. 

Employers should revise their FMLA military leave policies to ensure that they are in compliance with these new revisions.  In the meantime, if you have any questions concerning these new revisions please contact a member of our Labor and Employment Law Department for additional information.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2010 Sherman & Howard L.L.C.                                                   January 5, 2010