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NDAA Expands FMLA in Vermont

February 13th, 2008 Posted by Amelia

On January 28, 2008, President George W. Bush signed the NDAA (National Defense Authorization Act) HR 4986 into law. Included in this bill was a provision to expand the FMLA (Family Medical and Leave Act).

The bill went into effect immediately, which means military families were entitled to take FMLA beginning January 28, 2008.

As a result of this expansion, FMLA will now provide up to 26 weeks of unpaid, job-protected leave to relatives and spouses of National Guard and Reserve personnel who are called to active service. The law allows a spouse, son, daughter, parent or next of kin to take FMLA to care for military personnel who are under medical treatment, including physical or mental therapy and treatments on an outpatient basis. FMLA leave can also be taken to care for a soldier who’s on temporary disability for serious illness or injury.

In addition, the NDAA allows workers to take FMLA leave for “any qualifying exigency” regarding a family member who has been called to active duty. This “exigency” can include caring for children of a deployed soldier, or to care for an ill person previously under that soldier’s care.

According to FMLA currently in place, a family member was defined as spouse, parent, or child. As a result of NDAA, FMLA has been expanded to include “next of kin”. In some cases, the “next of kin” could include in-laws, cousins, aunts and uncles, which would allow them to take unpaid leave.

The regulations, including exactly what constitutes “any qualifying exigency” are still being drawn up by the U. S. Department of Labor. Until the final regulations are published, the NDAA is not technically in effect. Once the regulations are finalized, they will be sent to the White House for approval. Upon approval, the U. S. Department of Labor will publish the results.

Until publication, the U. S. Department of Labor requires employers to “act in good faith” and grant leave to eligible workers. To manage the leave, companies can utilize FMLA procedures already in place, such as medical certification and substitution of paid leave.

The previous FMLA parameters allow a worker to take up to 12 weeks of unpaid, job-protected leave for their own ill health, and/or to care for an ill parent, spouse or child. FMLA leave can also be taken to care for a newborn. Adopting a child, or bringing a newly fostered child under the age of 18 into the home are also covered by FMLA

Before the passage the FMLA (Family Medical and Leave Act) in 1993, workers who missed work due to serious health issues such as heart attack or major surgery risked losing their jobs. At that time, each employer handled leave for a worker’s ill health on a case by case basis. Often after a worker missed 2 or 3 weeks of work, the company fired him or her.

Some companies prefer to charge the employee’s paid time off (sick leave or vacation time) to the 12 weeks allowed under FMLA. These companies are permitted to do this only if the employee is informed in writing prior to taking FMLA leave.

The FMLA, a federal law, truly broke new ground for all employers. Under this Act, companies had to provide employees with unpaid, job-protected leave for a serious health issue. When the worker returned from leave, he or she must still have a job. If the same position is no longer available, then the employer must provide a position with similar pay, benefits and working conditions.

Several states have enacted laws to expand FMLA coverage. Some, like Hawaii, amended the definition of family member to include grandparents and in-laws. Other states extend the number of weeks available or the amount of benefits.

Recently, the National Defense Authorization Act of 2008 was enacted. This law expands the FMLA and is the first major expansion since FMLA was passed. The parameters of the NDAA’s expanded FMLA are still unknown, as the U. S. Department of Labor has yet to publish the new regulations.