Richard D. Alaniz

While healthcare legislation has taken up most of the attention of the media and employers lately, Congress has also been busy with other matters. Last October, President Barack Obama signed the National Defense Authorization Act (NDAA) of 2010 into law. Among other things, the amended NDAA expands the number of employees who are eligible to take Family Medical Leave Act (FMLA) qualifying leave. In this case, it is to care for sick or injured family members in the military.

“As Commander-in-Chief, I will always do whatever it takes to keep the American people safe, to defend this nation,” Obama said during the signing. “And that’s why this bill provides for the best military in the history of the world. It reaffirms our commitment to our brave men and women in uniform and our wounded warriors. It expands family leave rights for the family members of our troops and veterans. And it makes investments in the capabilities necessary to meet 21st century challenges.”

The NDAA is passed every year and mainly outlines the budget and expenditures of the U.S. Department of Defense. Congress also includes other matters that involve those serving in the military, veterans, and their families. The NDAA for fiscal year 2010 expands the 2008 NDAA, which significantly increased the Family and Medical Leave Act as it applied to military families. With the latest version of the NDAA, employers need to be aware of changes regarding which employees are eligible to take leave to care for a military family member, which types of injuries and illnesses qualify an employee for caregiver leave, and how long that leave can last.

Among the significant changes in the 2010 version of the law:

• Previously, military caregiver leave could only be taken to care for current members of the armed forces, guard, or reserves. The 2010 NDAA amendments expand coverage to include veterans within five years of the date they received medical service.

• Previously, caregiver leave only covered injuries that were incurred in the line of duty. Now, the aggravation of existing or preexisting injuries that were incurred in the line of duty also qualifies.

• Previously, qualifying exigency leave was only available to the reserves or guard. It now includes members of the regular armed forces who are deployed to a foreign country.


“Eligible employees” are allowed to take caregiver leave under NDAA 2010. Those who qualify as eligible employees are the spouse, son, daughter, parent, or next of kin of qualified service members in the armed forces, including members of the National Guard or reserves.

During a 12-month period, eligible employees are entitled to take 26 workweeks of unpaid leave to care for a service member who is undergoing medical treatment, recuperation, or therapy, in outpatient status or on the temporary disability retired list, because of a serious injury or illness. A serious injury or illness is considered one that is incurred in the line of duty that makes the service member medically unfit to perform his or her duties.

The “eligible employee” standards remain the same as the 2008 act, which mirrored the FMLA standard. According to the U.S. Department of Labor (DOL), in order to qualify to take caregiver leave, an employee must have worked for a covered employer at least 1,250 hours over the previous 12 months (and have worked for a total of at least 12 months), and work at a location where the employer employs at least 50 people within 75 miles.

For employees seeking to take leave as the caregiver of a military member or veteran, the notice requirements remain the same. According to the DOL, employees who are seeking to use military caregiver leave must provide 30 days advance notice when medical treatment is planned for a serious injury or illness of a qualified service member. If the employee can anticipate the leave, but is not able to give 30 days advance notice, the employee must provide notice as soon as it is practicable. When an employee needs to take sudden or unforeseeable military family leave, he or she similarly needs to provide notice as soon as practicable.

While employees do not need to specifically mention FMLA when providing notice, they do need to provide “sufficient information.” This may include information that shows the requested leave is for a qualifying exigency related to the employee’s active duty or call to active duty status, or that the leave is for the employee’s qualifying family member who is a covered service member with a serious injury or illness. Employees need to provide the anticipated duration of the leave as well. Since there are technical requirements, supervisors and managers should refer such requests to human resources personnel for proper and consistent responses.

If an employee seeks leave for the same FMLA-qualifying reason which the employer has previously provided FMLA leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.

It is advisable to consult with human resources or legal counsel to review existing FMLA leave policies, identify eligibility periods to prevent possible abuse of leave, and evaluate the employer’s normal policy to determine whether vacation or sick days run concurrently to cover some or all of the FMLA leave. Now that more employees may be eligible for FMLA leave, it’s a good time for employers to review and update all of their FMLA-related policies to ensure they are in compliance with the NDAA 2010 and other federal and state regulations.

Publication date:04/19/2010