The National Defense Authorization Act of 2010 expands by tens of thousands the number of employees who can ask their private-sector employers for FMLA exigency leave and military caregiver leave. In force since Oct. 28, 2009, these changes are still not widely known among Armed Forces members and their families, says Constangy Brooks & Smith Partner Heather Owen, who practices in the military town of Jacksonville, Fla.

“That’s a lot of people who don’t realize they are covered because it hasn’t gotten a lot of press,” notes Owen, who foresees an up-tick in new FMLA leave requests once the latest changes become known.

Qualifying exigency leave, once restricted to families of National Guard members, was expanded to cover families of regular military members deployed on active duty to a foreign country.

An employee can qualify for exigency FMLA leave:

  • When the service member has received a week or less in notice of deployment;
  • For military events and related activities;
  • For urgent (as opposed to recurring and routine) child-care and school activities;
  • For financial and legal tasks to deal with a family member’s active duty;
  • For counseling for the employee or child who isn’t already covered by FMLA;
  • To spend time with the covered service member on rest and recuperation breaks during deployment;
  • For post-deployment activities;
  • For other purposes arising out of the call to duty, as agreed upon by the employee and employer.

Under the FMLA’s military caregiver leave provisions, an eligible employee may take up to 26 workweeks of leave during a single 12-month period to care for a family member who is a covered service member. Effective October 27, 2009, employees may also take military caregiver leave to care for family members who sustained a qualifying injury for up to five years after they have been discharged from military service. Military caregiver leave was also expanded to cover care given by family members to those who experience aggravation of existing, or pre-existing, injuries incurred in the line of duty.