Hunton Employment & Labor Perspectives

The National Defense Authorization Act for Fiscal Year 2010 further expands the recent amendments to the Family and Medical Leave Act (FMLA), which provides leave to qualified employees to care for family members with needs relating to military service.   However, for those employers who rely exclusively on the Department of Labor website for their required postings and certification forms, beware - portions of the Department of Labor’s website have not yet been updated to reflect these changes and reliance upon these outdated materials may cause an employer to inadvertently, yet unlawfully, deny an employee his or her rights under the FMLA.

The NDAA expands “exigency” leave to family members of members of regular armed forces who have been deployed to a foreign country.  The military caregiver provision has likewise been expanded to allow family members of veterans to take such leave, as long as the veteran was in active service during the five years previous to the date on which he or she needs care.  However, neither the "Employees Rights and Responsibilities under the Family and Medical Leave Act" poster nor the certification forms provided on the DOL website have been modified to reflect the new law.  An employer who relies on these materials may be unlawfully denying leave to those employees who are now eligible.

To avoid liability, and confusion, employers should familiarize themselves with the new law and avoid exclusive reliance on the current DOL website.   Employers are also encouraged to amend their certification forms to comply with the new law.  Finally, employers should inform their employees of their expanded rights by taking steps such as amending their postings, updating their handbooks and/or revising their written policies.