Federal Employment Law

Federal Legislation Alert

October 28th, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act (H.R. 2647). The new law includes an expansion of the recently-enacted exigency and caregiver leave provisions for military families under the Family and Medical Leave Act of 1993 (FMLA).

The global purpose of H.R. 2647, the National Defense Authorization Act for Fiscal Year 2010, is "to authorize appropriations for fiscal year 2010 for military activities of the Department of Defense, to prescribe military personnel strengths for fiscal year 2010, and for other purposes."

One of these "other purposes" is to mandate additional coverage of the federal Family and Medical Leave Act (FMLA) for covered military-related employees of private employers of 50 or more employees, public agencies and private and public schools.

H.R. 2647 amends FMLA to provide protected leave “because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty)” in a foreign country, and for caregiver leave for an injured or ill military veteran. Covered Exigency Leave

Prior to H.R. 2647, covered exigency leave was allowed only for employees with a covered family member in the National Guard or Armed Forces Reserves for "contingent operations". Now, FMLA of up to 12 weeks annually must be provided for the exigent circumstance of a covered family member being called to active duty to a foreign country, whether the family member is already a regular member of the Armed Forces or being called up from the Reserves or Guard.

Exigent circumstances for military were previously added to FMLA in 2008 as grounds for leave for family members in the National Guard. H.R. 2647 expands this leave right to encompass active servicemembers being deployed overseas, in response to the government's stepped up Afghanistan and Iraq troop missions.

These previsions are effective upon enactment.

In addition to providing leave for military families, the FMLA provides unpaid leave for the birth, adoption or foster care placement of an employee’s child, as well as for the “serious health condition” of a spouse, son, daughter, or parent, or for the employee’s own medical condition. To be eligible for the leave, employees must work in organizations of 50 or more employees and work at least 1,250 hours in a 12-month period