labor lawAdivision of labor law center

President George W. Bush signed a bill on January 28, 2008 that provides up to 26 weeks of unpaid, job-protected FMLA leave for relatives and spouses of National Guard and Reserve personnel who have been called to active duty. The law also extends the same benefit to spouses and relatives of active members of the armed services.

The FMLA expansion was part of the National Defense Authorization Act or NDAA, HR 4986. The U.S. Department of Labor immediately began drawing up regulations for this new policy, for approval by the White House.

Employers must immediately begin granting leave to family members to care for injured soldiers. The NDAA expands FMLA to include the soldiers “next of kin,” regardless of the relationship. This could potentially allow in-laws, cousins, aunts and uncles to take unpaid leave under NDAA.

It also increases the total unpaid FMLA leave from 12 weeks to 26 weeks, for military families.

The new law went into effect immediately, which means that military families were entitled to take leave beginning January 28, 2008.

The new law permits a spouse, son, daughter, parent or next of kin to take up to 26 weeks of unpaid FMLA leave to care for a member of the armed forces, reserve or National Guard who is receiving medical treatment. This treatment includes recuperating, undergoing physical or mental therapy, treatments on an outpatient basis, or caring for a soldier on the temporary disability retired list for a serious illness or injury.

While the U.S. Department of Labor is drawing up final regulations for this expanded coverage under FMLA, they will require employers to act in good faith under the new legislation. The U.S. Department of Labor’s Wage and Hour Division enforces this law.

Because the NDAA amends the FMLA, the U.S. Department of Labor urges employers to use FMLA procedures already in place for unpaid leave, including medical certification and substitution of paid leave.

The NDAA also permits an employee to take up to 26 weeks of leave for “any qualifying exigency” arising from the fact that a spouse, son, daughter or parent of the employee is on active duty, or has been notified of impending active duty. It is probable that this will include time off to care for children when a family member is deployed. This provision of the NDAA is not technically in effect until the U.S. Secretary of Labor issues final regulations on what constitutes a “qualifying exigency.” In a confusing message, the U.S. Department of Labor “encourages” employers to provide such leave to workers immediately.

More information will be published as soon as the U.S. Department of Labor finalizes the regulations, which may take several weeks.

The expanded FMLA at 26 weeks allows more than twice the 12 weeks provided by the traditional FMLA. In addition to the increased in time, the expanded FMLA also allows leave to care for healthy children.

Under the past FMLA regulations, any qualified employee can take off time to care for a sick child or a sick parent or spouse. Caring for healthy children can only be charged to FMLA upon birth, newly adopting a child, or newly fostering a child. For example, if a stay-at-home mom develops a long-term illness. Her husband can take FMLA leave to care for her, but not to watch the children.

Under the newly expanded FMLA, spouses and relatives can take FMLA leave for up to 6 months to stand in for a National Guard or Reserve member who’s been called to active duty. That leave can be granted to care for a sick child or parent, and to take care of healthy children as well.

The president had vetoed a similar bill just a month earlier on December 28, 2007.

This bill expands FMLA (Family Medical and Leave Act) coverage throughout the United States.

Pundits in Washington were not surprised by the President’s quick flip-flop. After the previous veto, President Bush stated that the FMLA portion of the bill was in no way connected to his reasons for the veto. The expanded FMLA was part of the National Defense Authorization Act, which President Bush believed 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 statement opened the door for the expanded FMLA to be attached to another bill in 2008, and made its passage almost certain. That passage occurred on January 28, 2008.

 

 

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1. Posted by: New FMLA, NDAA Rules Include Advance Notice Requirement - Labor Law Center Blog

   [...] An expansion to the FMLA under the National Defense Authorization Act of 2008, or NDAA, expands FMLA leave to 26 weeks for certain military families.  This law went into effect the day it was assigned, meaning military families have been entitled to this leave since January 28, 2008. [...]

2. Posted by: US DOL Announces New FMLA, NDAA Rules for Employers - Labor Law Center Blog

   [...] An expansion to the FMLA under the National Defense Authorization Act of 2008, or NDAA, expands FMLA leave to 26 weeks for certain military families.  This law went into effect the day it was assigned, meaning military families have been entitled to this leave since January 28, 2008. [...]

3. Posted by: New FMLA, NDAA Rules for Alaska - Labor Law Center Blog

   [...] NDAA, or National Defense Authorization Act of 2008 expands FMLA leave to 26 weeks for families of certain military members. The law went into [...]

4. Posted by: New FMLA, NDAA Rules for Nebraska - Labor Law Center Blog

   [...] the NDAA of 2008 (National Defense Authorization Act), certain military families became eligible for up to 26 weeks FMLA leave. The law went into effect [...]

5. Posted by: Idaho Military Family Leave Notice - Labor Law Center Blog

   [...] George W. Bush signed the NDAA into effect on January 28, 2008, which allowed families to take leave as of that date. The final [...]

6. Posted by: Nevada Military Family Leave Notice - Labor Law Center Blog

   [...] 2008 NDAA (National Defense Authorization Act) was signed by President George W. Bush, and went into effect immediately. A provision of this law expands unpaid, job-protected FMLA [...]

7. Posted by: NDAA Expands FMLA in Rhode Island - Labor Law Center Blog

   [...] January 28, 2008, President George W. Bush signed the NDAA (National Defense Authorization Act) HR 4986 into law. This was the first major expansion of the FMLA (Family Medical and Leave Act) [...]

8. Posted by: Maine Military Family Leave Notice - Labor Law Center Blog

   [...] The 2008 NDAA (National Defense Authorization Act) went into effect January 28, 2008. [...]

9. Posted by: Utah Military Family Leave Notice - Labor Law Center Blog

   [...] January 28, 2008, President George W. Bush signed the HR 4986 the National Defense Authorization Act (NDAA). A provision of the NDAA expands the FMLA (Family and Medical Leave Act) from 12 weeks to 26 weeks [...]

10. Posted by: Virginia NDAA - Labor Law Center Blog

    [...] January 28, 2008, President Bush passed the National Defense Authorization Act, an expansion of FMLA (Family and Medical Leave Act) [...]