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Time for Another Policy Revision: Updates to FMLA Qualifying Exigency and Military Caregiver Leave

On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (NDAA), which became effective immediately and expanded the Family and Medical Leave Act (FMLA). Specifically, the NDAA expands the coverage of the Qualifying Exigency Leave and Military Caregiver Leave provisions of the FMLA.

Changes to Qualifying Exigency Leave

Qualifying exigency leave allows eligible employees to take up to 12 weeks of FMLA leave to address certain qualifying exigencies arising from the fact that an employee’s family member has been deployed to a foreign country. Previously, only an employee with a family member serving in the National Guard or in a Reserve component of the armed forces was eligible for qualifying exigency leave. Now, employees with family members in both the regular armed forces and the National Guard or Reserve armed forces may take qualifying exigency leave.

The NDAA further modifies the Qualifying Exigency Leave provisions by eliminating the requirement that the family member’s call to duty be “in support of a contingency operation.” Now, an employee may be entitled to Qualifying Exigency Leave due to any qualifying exigency arising out of the fact that his or her family member is on “covered active duty” in a foreign country or has been notified of an impending call to active duty in a foreign country.

Changes to Military Caregiver Leave

The NDAA also makes significant changes to the Military Caregiver Leave provisions of the FMLA. Previously, preexisting conditions were not covered. Now, “serious injury or illness” is defined to include illnesses and injuries that existed before the beginning of the service member’s active duty that were aggravated by his or her active duty service, whether or not the illness manifested itself before the active duty service. Accordingly, an employee may take leave to care for a service member who is undergoing medical treatment, recuperation or therapy for a serious injury or illness that was sustained during active duty and for preexisting illnesses and injuries that were aggravated by active duty service.

Additionally, employees are now entitled to take Military Caregiver Leave at any time during a period of five years after the family member is discharged from the military. Before the recent revisions to the FMLA, the regulations provided for leave only for employees caring for family members who had not yet been discharged from the armed forces.

These changes to the FMLA became effective immediately. Employers should be aware that FMLA leave rights have been expanded, and employees who did not qualify for FMLA under the old regulations may now be entitled to leave. Employers should be sure to modify their FMLA policies accordingly.

© 2020 Poyner Spruill LLP. All rights reserved.National Law Review, Volume , Number 355


About this Author

Kevin M. Ceglowski, Employment and Labor Lawyer, Poyner Spruill, Law Firm

Kevin represents employers in many areas of labor and employment law, including race, age, gender, religion, national original, and disability employment discrimination claims, wrongful discharge claims, and wage and hour claims. He defends clients before administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the North Carolina Employment Security Commission, in state and federal courts, and in arbitrations. Kevin also provides guidance to management to ensure employment practices are in full compliance with all...