Recent Employment Law Updates: FMLA Legislative Changes and New EEO Poster

By Craig M. Brooks

A.  NEW LEGISLATION EXPANDING FMLA COVERAGE FOR MILITARY FAMILIES

On October 28, 2009, President Obama signed the 2010 National Defense Authorization Act (NDAA) that includes an expansion of the exigency and caregiver leave provisions for military families under the Family and Medical Leave Act of 1993 (FMLA).

In January 2008, Congress amended the FMLA to extend coverage to military families to provide for exigency leave and caregiver leave in certain situations. (See our Articles Houston Harbaugh – FMLA Includes Leave for Military Servicemembers Families; Houston Harbaugh – New FMLA Rules and Requirements). The following summarizes these leaves as initially enacted in 2008 and their new expansion under the 2010 NDAA:

2008 Amendment – Exigency Leave:

Up to 12 weeks of leave to family members (spouse, son, daughter or parent) of members of the Reserves or National Guard called to active duty, for qualifying exigencies related to call to active duty.

Qualifying exigencies are defined as the following eight situations:

    1. short-notice deployment;
    2. military events and related activities;
    3. childcare and school activities;
    4. financial and legal arrangements;
    5. counseling;
    6. rest and recuperation;
    7. post-deployment activities; and
    8. additional activities to address other events which arise out of the covered military member’s active duty or call to active duty, provided the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

New Change Under 2010 NDAA:

Prior to the passage of the 2010 NDAA, qualifying exigency leave only covered eligible family members of a serviceperson who was a member of the Reserves or National Guard. Under the 2010 NDAA, family members of active duty members of the Armed Forces are now entitled to FMLA caregiver leave under the same circumstances as family members of members of the Reserves or National Guard.

Also, the new law removes prior limitations on what calls to active duty are covered by the FMLA. Previously, the FMLA only covered a call to active duty in support of a military operation designated by the Secretary of Defense as being against an enemy of the United States or an opposing force — a so-called "contingency operation." Under the amendments, covered active duty now relates to when a member of the regular Armed Forces or reserve components is deployed to any foreign country, even if the deployment does not involve a contingency operation.

2008 Amendment – Caregiver Leave:

Up to 26 weeks of leave for a family member (who is the spouse, parent, son, daughter or next of kin) of a covered servicemember injured or recovering from a serious injury or illness incurred in the line of duty, to care for the servicemember. "Covered servicemember" is defined as a member of the Armed Forces, including a member of the National Guard or Reserves.

"Serious injury or illness" is defined as an injury or illness of the covered servicemember incurred in the line of duty on active duty in the Armed Forces that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating.

New Change Under 2010 NDAA:

Caregiver leave has now been expanded to include veterans undergoing medical treatment, recuperation or therapy for a serious injury or illness and who were members of the Armed Forces (including members of the National Guard or Reserves) at any time during the five years preceding the date of treatment, recuperation or therapy. Previously, caregiver leave was available only to care for a current member of the Armed Forces, National Guard or Reserves with a serious injury or illness.

The definition of a "serious injury or illness" has also been expanded to include an injury or illness that was incurred by the covered servicemember before the servicemember’s active duty and was aggravated by service in the line of duty while on active duty. Previously, caregiver leave was unavailable to care for the aggravation of existing injuries.

A serious injury or illness of a veteran is further defined to encompass an injury or illness incurred in the line of duty on active duty in the Armed Forces (or which existed prior to active duty but was aggravated by service in the line of duty in the Armed Forces) and that manifested itself before or after the covered servicemember became a veteran. Previously, caregiver leave was unavailable to provide care for a servicemember whose injury or illness manifested itself after the servicemember left military service.

These expanded FMLA military family leave rights are effective immediately. Employers should promptly amend their FMLA policies to reflect these new changes.

B. NEW REQUIRED EEO POSTER

The Equal Employment Opportunity Commission (EEOC) has recently issued a revised workplace notice for use by employers covered by federal civil rights laws and anti-discrimination laws. The new notice references the requirements of the Genetic Information Nondiscrimination Act (GINA) which take effect on November 21, 2009, as well as the changes made by the ADA Amendments Act (ADAAA), which took effect on January 1, 2009. GINA prohibits employers and healthcare insurers from discriminating on the basis of genetic information. It prohibits employers from discharging, refusing to hire, or otherwise discriminating on the basis of genetic information, and from intentionally acquiring genetic information about applicants and employees. (See our Article Houston Harbaugh – Employment Law Activity Heats Up).

The EEOC requires covered employers to post the revised workplace notice.  This can be done by posting a supplement alongside the employer’s current EEOC workplace notice or by posting the new complete November 2009 version.  These can be obtained for free at the following site:

http://www1.eeoc.gov/employers/poster.cfm

If you need assistance in updating your FMLA policies or if you have questions regarding the 2010 NDAA changes or about the new EEO Poster, please call your Houston Harbaugh employment lawyer.