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NDAA Expands FMLA in Washington

February 12th, 2008 Posted by Amelia

The National Defense Authorization Act (NDAA) of 2008 was signed into law on January 28, 2008 by President George W. Bush. Within the NDAA is a provision to expand the FMLA (Family Medical and Leave Act) to provide up to 26 weeks for spouses and relatives of National Guard and Reserve personnel who are called to active duty.

The law went into effect immediately and the U. S. Department of Labor is scrambling to finalize regulations for this new policy, which will be submitted to the White House for approval.

Until regulations are published by the Secretary of Labor, companies should utilize FMLA procedures, such as medical certification and substitution of paid time, to grant leave for family members to care for injured soldiers.

The expanded FMLA increases the current 12 weeks of unpaid, job-protected leave to 26 weeks for military families. Spouses, daughters, sons and parents can take this leave to care for a member of the National Guard, Reserve or active military who is undergoing physical or mental therapy, outpatient treatments or recuperating from illness. In addition, FMLA leave can be granted to care for soldiers on temporary disability due to illness or injury.

The FMLA expansion of the NDAA also includes the addition of “next of kin” as eligible persons to take leave. This means that aunts, uncles, cousins or in-laws to take unpaid FMLA leave.

In addition to caring for an injured soldier, FMLA allows a spouse, son, daughter or parent to take leave when a soldier is informed of imminent deployment. This leave would allow families of deployed military to stand in for that soldier while he or she is on active duty, to care for anyone in that soldier’s care. This provision of the FMLA will most likely be used to care for healthy children, but can also be used to care for an ill family member.

Currently no federal or state law exists requiring this leave to be paid. Some companies can count paid leave such as sick leave toward the 12 weeks of FMLA, but only if the employee is informed–in writing–prior to take leave.

Several states have enacted laws to expand their FMLA. Hawaii amended the definition of family member to include in-laws and grandparents. Other states increased benefits and/or extended the amount of leave available beyond 12 weeks.

The NDAA of 2008 is the first major expansion of the FMLA since it was originally enacted. At that time, no law existed that guaranteed leave for an employee to deal with serious health issues. Companies viewed the requests for leave due to medical reasons on a case by case basis, according to individual company policy. Often if an employee missed more than a couple of weeks because of major surgery, or recovering from a heart attack, that employee got fired.

The effect of the FMLA was groundbreaking. For the first time a federal law required companies to grant unpaid, job-protected leave for a worker facing serious health issues. The worker could use up to 12 weeks of leave to care for his or her illness, or for those of a parent, a spouse, or a child. In addition, FMLA allowed leave for childbirth, for the adoption of a child, and for newly fostering a child under the age of 18.

Recent passage of the National Defense Authorization Act of 2008 (NDAA) will expand the parameters of the Family Medical and Leave Act (FMLA), enacted in 1993.

When the employee returned to work, he or she still had a job. Usually, the worker is given the same job. If the same job isn’t available, though, the company must provide the worker with a position with comparable benefits, pay and working conditions.

How the new NDAA 2008 will affect any of the existing rules isn’t’ clear, yet. The U. S. Department of Labor is currently scrambling to define the regulations. Once those are spelled out, the Labor Department will publish the results.