New Law Expands FMLA and NDAA for Military Families

A new law signed by President Barack Obama on October 28, 2009 expands FMLA for military families even more than the NDAA or National Defense Authorization Act of 2008.


This change in the law will require every employer to update the Military Caregiver poster, even if they do not have any employees who qualify.


The  National Defense Authorization Act for 2010 provides for two  major changes to current FMLA regulations: 

  • Families of Armed Forces members on active duty are covered, not just family members of the National Guard and Reserve
  •  Military caregiver leave is expanded to cover the families of some veterans 

It appears that these changes are retroactive, according to Matthew Effland, an Indianapolis attorney specializing in FMLA issues.


Active Duty Included

Under the new law, when a member of the Armed Forces is deployed to a foreign country, his or her spouse, son, daughter, parent, step-child, or step-parent can take up to 12 weeks of unpaid, job-protected FMLA leave for any “qualifying exigency.”


Many employers have already been granting this leave to military families, and not just the families of Reserve or National Guard members who are called to active duty. In fact, it is unclear why the U.S. Department of Labor interpreted the original law so narrowly in the final days of the second Bush administration.


Under the current regulations, qualifying exigencies include attending military-sponsored functions, making appropriate financial and legal arrangements, handling details of a short-notice deployment, attending counseling, and making alternate childcare arrangements. In addition, an employee can take up to 5 days of FMLA for rest and recreation or R&R under the law. The employee can also use FMLA up to 90 days following deployment for arrival ceremonies, post-deployment ceremonies and other military events.


Military Caregiver Leave Expanded to Veterans

The NDAA also permits an employee who is the son, daughter, spouse, or parent to take up to 26 weeks of unpaid, job-protected FMLA during a 12-month period to provide care for a service member who has been injured or contracted a disease in the line of duty.


This extended FMLA leave also applies to the injured soldier’s next-of-kin, regardless of the relationship. This means in some cases that an in-law, grandparent, sibling, aunt, uncle or cousin could qualify for military caregiver leave.


The new law permits the Continue reading

EEOC Caregiver Controversy

The EEOC on April 22, 2009 released guidelines of best practices for employers who have workers with personal care-giving responsibilities.


Many employment law experts take exception to this action by the EEOC. They point out that no federal (and few state) laws specifically protect caregivers from discrimination. One SHRM representative rather caustically remarks that the EEOC has enough to do, enforcing discrimination based on race, color, religion, national ancestry, sex, pregnancy, disability and age, without branching out into more controversial areas.


The EEOC, however, contends that most caregivers are covered under several existing laws including:

  • The Americans with Disabilities Act, which prohibits discrimination based on association with a disabled person. This law would protect an employee who was caring for her developmentally disabled adult sister, or a grandparent who was in a wheelchair
  • Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex or race, when caregivers are treated disparately. For example, an employer may assume that a female caregiver with a disabled child cannot travel, and therefore is not eligible for a promotion. Or, the employer may assume that a male employee cannot or should not have caregiver responsibilities.
  • FMLA, the federal Family and Medical Leave Act, which permits employees to take up to 12 weeks of unpaid, job-protected leave to care for a parent, son or daughter or spouse with a serious health condition. Employers are legally required to notify the employee within 5 days of an absence that could qualify as FMLA. Instead, many employers deny time off to workers with care-giving responsibilities.

Even the EEOC admits that these guidelines are a bit of a reach. “Federal law Continue reading

Avoid Caregiver Discrimination

Since 2006, the EEOC has focused on a new type of discrimination in the workplace – discrimination against caregivers.


Now the EEOC has released  best practices to avoid caregiver discrimination. The 10-page document outlines steps employers can take to avoid this increasing type of illegal discrimination.


Employers should note that no federal law currently makes caregivers a protected class. However, the EEOC is increasingly investigating and in some cases filing suits on complaints from caregivers.


Caregiver discrimination is an easy mistake for the employer to make. Suppose Sue has two daughters under the age of 6. One of her daughters has special needs due to a congenital disability. Sue’s employer decides not to promote her to a regional sales position that requires travel, because of her personal situation. The employer assumes that Sue will be unable to travel, or will do a poor job in the new position, because of her caregiver responsibilities. This is illegal discrimination. Sue is losing out on a promotion she would otherwise receive, simply because she is associated with a disabled person – a type of illegal discrimination prohibited under ADA, the Americans with Disabilities Act.


Sue may also be the target of illegal discrimination based on sex under Title VII of the Civil Rights Act of 1964, if a male employee in the same situation would be promoted.


Caregiver responsibilities can include Continue reading

More 2009 Military Leave Regulations

The U.S. Department of Labor recently issued regulations concerning the use of military leave and expanded FMLA leave for military caregivers.


Speaking on the release, Labor Secretary Elaine L. Chao said, “This final rule, for the first time, gives America’s military families special job-protected leave rights to care for brave service men and women who are wounded or injured, and also helps families of members of the National Guard and Reserves manage their affairs when their service member is called up for active duty.” The Secretary added, “At the same time, the final rule provides needed clarity about general FMLA rights and obligations for both workers and employers.”


The new regulations expand the qualifying family members, for military leave purposes. Traditionally, the FMLA or Family and Medical Leave Act has defined an “immediate family member” as a son or daughter, parent or spouse. Sons and daughters were covered only if they were under the age of 18, or unable to care for themselves. Under the military family leave provision of Continue reading

New 2009 Military Caregiver Regulations

Months after the president signed the NDAA or Military Family Leave Act into law, employers are finally receiving guidelines on how to implement it.


Every employer is required to prominently display a Military Leave Notice in the workplace, under this new law.


The regulations issued by the U.S. Department of Labor go into effect on January 16, 2009 but employers would be wise to implement them now. This is because, unlike the updated FMLA regulations, the Military Family Leave regs are not replacements to existing regulations – they are the first and only regulations on this new type of leave.


Leave under the Military Family Leave Act is an extension of FMLA, or leave under the Family and Medical Leave Act.


An employee may take up to 26 weeks of military caregiver leave during a single 12-month period to care for a soldier injured on active duty. The leave can be taken Continue reading