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NDAA Expands FMLA in Louisiana

February 10th, 2008 Posted by Amelia

As of January 28, 2008, relatives and spouses of active military, Reserve and National Guard are eligible to take up to 26 weeks of FMLA leave to care for an injured soldier.

The traditional FMLA (Family Medical and Leave Act) provided job-protected, unpaid leave to eligible employees for up to 12 weeks.

The expansion of the FMLA is a result of President George W. Bush signing the National Defense Authorization Act of 2008, HR 4986 into law on January 28, 2008. The law went into effect immediately, allowing families of military personnel to take FMLA leave immediately.

The NDAA provision to expand the FMLA has several purposes. One, the Act gives families of military extended leave beyond the traditional FMLA allotment of 12 weeks. Two, the Act adds “next of kin” to the list of eligible family members, which could allow in-laws, cousins and aunts and uncles to take FMLA to care for an injured or ill soldier. Three, the Act provides leave for a spouse, parent, son or daughter to stand in for military personnel called to active duty. While the soldier is away, the relative or spouse can care for whoever was in that soldier’s charge, including watching over healthy children.

The term used in the NDAA for the third provision of the expanded leave is “any qualifying exigency.” As yet, the details for this provision and for the entire NDAA have not been published. That duty falls to the U. S. Department of Labor, which is working to finalize regulations for White House approval. Once approved, the rules for FMLA will be enforced by the Wage and Hour Division of the U S. Department of Labor.

Since, technically, the NDAA isn’t in effect until the Secretary of Labor publishes the regulations, the U. S. Department of Labor requests employers “act in good faith” to grant all eligible families the expanded FMLA leave. FMLA protocols and procedures already in place, such as medical certification and substitution of paid leave, are excellent tools to manage the new leave.

In 1993, a ground-breaking federal law was passed. The Family Medical and Leave Act (FMLA) was the first law to require employers to provide unpaid, job-protected leave for employees with health concerns.

Passage of the FMLA provided a standard for employers with over 50 workers within a 75 mile radius. Under this law, employees are entitled to take up to 12 weeks of unpaid, job-protected leave to care for their own illness, or to care for a seriously ill parent, spouse or child. FMLA also covers recovery time and care of the baby after childbirth, plus adoptions and newly fostering a child under 18.

A new law, NDAA (National Defense Authorization Act of 2008) was recently passed to expand FMLA, and is the first major expansion of that law since 1993.

The law guarantees that when the employee returns to work, he or she will still have a job. Usually, the original job is available. If not, the company is required to provide a job with similar working conditions, wages and benefits.

Prior to FMLA, an employee who missed work because of major surgery or chemotherapy was at risk of becoming unemployed. Companies dealt with these cases on an individual basis, using their own company policy. If an employee needed leave for medical reasons, the business decided how much for how long. Often, after a worker missed 2 to 3 weeks of work because of illness, the company simply fired him or her.

The NDAA of 2008 will expand the federal FMLA. To what degree is currently unknown. The U. S. Department of Labor has not yet published the regulations for this new act. Once those regulations are finalized, all eligible employers will be required to follow the new mandates.

Expanding FMLA isn’t completely new. Eleven states have increased their FMLA benefits already. Hawaii includes grandparents and in-laws in its definition of family member. Other states allow more than 12 weeks of leave, while other states increase the amount of benefits.