labor lawAdivision of labor law center

On December 28, 2007 President George W. Bush vetoed a bill that would have provided Family and Medical Leave to employees when their child, parent or spouse is called to active military duty.

The law would have allowed employees to use FMLA leave when a spouse, son daughter, parent or next of kin was called to active military duty. Unlike other types of FMLA leave, this period would extend for 26 weeks, or about six months, instead of the usual 12 weeks. The leave is designed so that family members can care for children or infirm parents, who were formerly cared for by a member of the National Guard or Reserve. The leave would only be available once, during a single 12-month period.

It is unclear whether the worker would also qualify for an additional 12 weeks of FMLA, for the same reason, every 12 months.

Critics say that the veto, combined with extended tours in Iraq for many members of the National Guard and Reserve, places an undue burden on their families.

Proponents point out that the additional FMLA would be a burden to many employers. They argue that if the government wants soldier’s families to take leave, the government – not employers – should pay for it.

President Bush’s stated reason for not signing the bill is unconnected with the FMLA coverage. According to the White House, the President vetoed the bill, HR 1585, because it was included in the National Defense Authorization Act, and would “risk imposing financially devastating hardship on Iraq that will unacceptably interfere with the political and economic progress everyone agrees is critically important to bringing our troops home.”

This leaves the door open for the FMLA military leave to be enacted in another law, in 2008.

Members of the National Guard and Reserve who are called to military service already have their jobs protected under the USERRA.

This is not the only proposed change to the FMLA. Democratic presidential candidate Hilary Clinton has suggested amending FMLA coverage so that such leave is paid, if she is elected. Under a mandatory program, employers would be required to carry insurance for each worker, so that he or she would be paid for any time off under FMLA. It is not clear how employers would meet this financial burden.

The Family and Medical Leave Act of 1990 permits workers to take unpaid, job-protected leave for a variety of personal reasons. These include the adoption or birth of a child, or the placement of a new foster child under the age of 18. Employees are also entitled to take unpaid leave to deal with their own serious illness, or to attend to an immediate family member who is ill. This includes time off to care for a parent, child, or spouse who has a serious illness. The FMLA does not currently provide leave to care for an in-law, a grandparent or a sibling. It also does not cover time off to care for a domestic partner.

A number of states have enacted legislation that significantly increases the coverage provided by the FMLA. In California, many workers qualify for paid family leave. In other states, the leave can be for longer periods of time, or applies to smaller employers. In Hawaii, state law extends FMLA-type leave to employees who wish to care for in-laws, grandparents and domestic partners.

In general, workers are entitled to take up to 12 weeks of unpaid leave every 12 months, under FMLA. A controversial part of the program permits workers to take this leave intermittently, even without warning the employer in advance.

While FMLA is unpaid, it does involve costs to the employer. The employer must continue paying the same portion of any benefits and healthcare costs. Employers incur additional expenses in hiring and training a temporary replacement for the worker on FMLA. In many cases, workers returning from FMLA leave take a few weeks or months to return to the former level of productivity.

The FMLA applies only to companies with 50 or more workers within a 75-mile radius. Normally, an employee must have worked 1250 hours in the past 12 months, for the current employer, to qualify. Employees must continue to payt their portion of any benefits, such as healthcare premiums.

Under FMLA, workers are guaranteed a job when they return. Normally, this means the same job. However, if this is not possible, workers may receive a job that is comparable in salary, benefits and working conditions.

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