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Hawaii NDAA

February 18th, 2008 Posted by Amelia

The new NDAA (National Defense Authorization Act) of 2008 went into effect immediately, permitting eligible persons to take leave as of January 28, 2008.

This law affects almost every employer in Hawaii.

Eligible persons are defined as sons, daughter, parents and spouses of an injured soldier. This soldier can be National Guard or Reserve who is on deployment, or active military. The expanded FMLA allows family members to take up to 26 weeks (6 months) of unpaid leave to care for the soldier. This act includes “next of kin” which may also permit aunts, uncles or cousins to take the expanded leave.

On December 28, 2007, President Bush vetoed a National Defense Authorization Act that carried an expansion of FMLA (Family and Medical Leave Act) leave that affects all Hawaii employers. The President stated, however, that the leave portion of the bill was in no way connected to the veto, but to a concern that the NDAA 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 allowed the FMLA expansion to be attached to another bill and to be passed into law.

Traditionally, FMLA leave is capped at 12 weeks, and applies to caring for a newborn, a newly adopted child, a newly fostered child, or a sick family member (defined as parent, spouse or child).

This new NDAA increases the amount of leave to 26 weeks, but also permits parents, spouses, sons and daughters to take unpaid FMLA leave when a family member is called to active duty. This provision allows family member’s to take responsibility for whoever was in that soldier’s charge. A parent, spouse, son or daughter could take FMLA leave to care for someone who is ill, or to take over the care of healthy children.

The U. S. Department of Labor will publish the details of the new NDAA as soon as the regulations are finalized. Until that time, it expects employers to comply with the new leave law to the best of their ability.

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.

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.

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.

The current 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

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.

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.