FMLA Coverage Expanded for Servicemembers and Their Families

The Family and Medical Leave Act (FMLA) passed in 1993 extended legal rights and protections to employees caring for themselves or family members in times of medical need.

The FMLA can be difficult for both employees and employers to navigate. And, as with many laws, gaps in coverage cause result in situations that are fundamentally unfair or divergent from the purpose of the law. Unfortunately, our men and women serving in the military and their families were not explicitly covered by this pre-911 law.

Most Americans would assume that FMLA benefits would be extended to family members caring for injured servicemembers or that working spouses of servicemembers could attend to family needs during deployments. However, that was not always the case. Prior amendments (2008) to the law addressed some discrepancies, but the Defense Authorization Act for 2010, signed by the President on Wednesday, explicitly extends FMLA benefits to servicemembers and their families in the following situations:

• A next of kin can take up to twenty-six weeks of unpaid leave to care for a seriously injured or ill veteran (as long as the injury manifests within 5 years of discharge).
• Employees will be entitled to 12 weeks of unpaid leave to attend to "exigencies" when a family member is deployed overseas and is applicable to reservists, National Guard and regular active duty members.

Both clarifications are important. First, psychological, neurological and traumatic brain injuries often manifest years after service. Second, the 2008 amendments left a great deal of confusion regarding whether active-duty regular servicemembers and their family were covered in the event of a deployment. The Department of Labor adopted the position that "family members of those in the Regular Armed Forces" were not covered by the FMLA exigency provisions.