Client Bulletin #419

2.15.10

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If you are still getting up to speed on the new military provisions in the Family and Medical Leave Act (either the 2008 amendments, the January 2009 regulations, or the October 2009 amendments to the 2008 amendments), don’t feel too bad. The U.S. Department of Labor, which enforces the FMLA, is also behind the curve.

The DOL website does not mention the latest amendments to the FMLA, and the mandatory FMLA poster doesn’t comply. More importantly, the recommended certification forms for military caregiver or qualifying exigency leave have not been updated to conform with the latest amendments, and reliance upon the forms that are currently in use could cause an employer to unknowingly violate the law by denying leave to an employee who is entitled to leave.

It takes considerable time, and a formal process, to amend regulations, but employers must be mindful that the “new” regulations – effective in January 2009 – are already out of date and not in compliance with the latest amendments concerning military leave.

What was changed in 2009

As most employers know, the National Defense Authorization Act of 2008 expanded the FMLA to provide leave for certain types of military-related situations. The DOL issued new FMLA regulations in late 2008 (to take effect in January 2009) dealing with these new types of FMLA leave and making some changes to the original FMLA regulations (effective in 1995) as well. Among other things, the January 2009 regulations contained revised medical certification forms and included all-new certification forms for the military types of leave. (For more details on the January 2009 FMLA regulations, see Constangy’s Client Bulletin dated December 3, 2008.)

Then, on October 28, 2009, President Barack Obama signed into law the National Defense Authorization Act of 2010. Although the Act received considerable news coverage relating to funding the wars, a provision was quietly added with little mention that significantly expands the FMLA as it relates to both types of “military” FMLA leave. The Act accomplished this by redefining several key terms, effective immediately (upon enactment in October 2009).

The 2008 amendments had created new FMLA leave for two types of military situations: the “serious injury or illness of a “covered servicemember,” and a “qualifying exigency” related to a “covered military member” who was called up in support of certain “contingency” operations. The National Defense Authorization Act of 2010 amends these 2008 amendments, and renders portions of the January 2009 regulations obsolete.

“Serious injury or illness.” FMLA leave is available to certain family members of a “covered service member” who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is on the temporary disability retired list for a “serious injury or illness.” Eligible employees are permitted up to 26 workweeks in a 12-month period on a “per-covered-servicemember, per-injury,” basis. The October 2009 amendments expanded the definition of “covered service member” so that it now includes “a 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.” Veterans were not included in the 2008 amendments. The definition of “serious injury or illness” is also expanded to include injuries or illnesses that are aggravated by service in line of duty on active duty for both active military members and covered veterans. The 2008 amendments did not cover veterans, or aggravations of injuries or illnesses.

"Qualifying exigency." Concerning qualifying exigency leave, the January 2009 FMLA regulations made it clear that this leave was limited to members of the National Guard, Reservists, and retirees who were called to action in support of “contingency” operations because, unlike members of the regular Armed Forces, these individuals’ civilian lives were usually disrupted on short notice, resulting in the need for their families to take time off from work to get their affairs in order. Despite this acknowledged distinction between regular Armed Forces and suddenly-activated reserve groups, the October 2009 amendments redefined “covered military members” to include those serving in the regular Armed Forces, and “covered active duty” so that it is no longer limited to “contingency operations.”

Recommendations for Employers

Until the DOL is able to update its materials, employers should make sure that they are granting FMLA “military” leave in accordance with the regulations that took effect in January 2009, as modified by the October 2009 amendments. Be particularly cautious before terminating an employee based on absences for which FMLA-military leave was claimed. It is normally easy to correct a mistaken interpretation as long as the employee is still employed, but back pay liability begins to accrue (and rack up) once the employment terminates. If you need assistance complying with the January 2009 FMLA regulations, the October 2009 amendments, or with any FMLA issue, please contact the Constangy attorney of your choice.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Massachusetts, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit www.constangy.com.

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