In short, the new FMLA amendments delete references to “contingency operations,” replaces “active duty” to “covered active duty,” expands exigency leave coverage to members of the families of active members of the regular armed forces (instead of just members of the reserved forces and national guard) and expands coverage of the 26-week servicemember leave to families of veterans who served in covered active duty at any point in the prior five years and were injured in the line of covered active duty.
First, the new amendment deletes the “newish” subsection (16) of the amended FMLA and amends the “newish” subsections (14), (15), and (19):
(14) ACTIVE DUTY.—The term ‘active duty’ means duty under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) CONTINGENCY OPERATION.—The term ‘contingency operation’ has the same meaning given such term in section 101(a)(13) of title 10, United States Code.
(16) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
. . .
(19) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’, in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.
These “newish” subjections have been replaced by the following language:
(14) COVERED ACTIVE DUTY.—The term ‘covered active duty’ means—
‘‘(A) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
(B) in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means—
(A) a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
(B) 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.
. . .
(18) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’—
(A) in the case of a member of the Armed Forces (including a member of the National Guard or Reserves), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating; and
‘‘(B) in the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during a period described in paragraph (15)(B), means a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred
by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.
The “newish” subsections (16) through (19) have now been renumbered as paragraphs (15) through (18), respectively. In other words, the language of “newish” subjections (17) and (18) has not changed, but they have been renumbered to (16) and (17) and “newish” subjection (16) [on contingency operations] was deleted entirely.
Second, the new amendment modified 29 U.S.C. § 2612(a)(1)(E), which currently provides:
(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.
To the following language:
(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) 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 the Armed Forces.
Third, 29 U.C.S. § 2612 (e)(3) has been amended as follows:
From the current language:
NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on active duty, or because of notification of an impending call or order to active duty in support of a contingency operation, the employee shall provide such notice to the employer as is reasonable and practicable.
To the new language:
NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on covered active duty, or because of notification of an impending call or order to covered active duty, the employee shall provide such notice to the employer as is reasonable and practicable.
Fourth, the new Act inserts the following language for 29 U.S.C. § 2611(19):
(19) VETERAN.— The term ‘veteran’ has the meaning given the term in section 101 of title 38, United States Code.
Finally, the employee’s duties regarding foreseeable leave under 29 U.S.C. § 2612(e)(2)(A) have been amended as follows:
(2) Duties of employee.
In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) of this section is foreseeable based on planned medical treatment, the employee -
(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer,subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, parent, or covered servicemember of the employee, as appropriate; and
Revised FMLA regulations are sure to follow at some point . . . .
Insomniacs can read the new Act in its entirety at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2647enr.txt.pdf
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
