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NDAA Expands FMLA in Oklahoma

February 21st, 2008 Posted by Amelia

Working members of a soldier’s family now have access to more than 6 months of unpaid, job protected leave through an amendment to the Family and Medical Leave Act, or FMLA.

The amendment was signed into law by the President on January 28, 2008, and went into effect immediately. Employers are obligated to give the leave time now, and in the absence of detailed information about the regulations, they are expected by the U.S. Labor Department to make a “good faith” effort to comply with the law.

As an amendment to the FMLA, the Labor department is saying that employers should use existing procedures for the unpaid leave - medical certification and substitution of paid leave, for example.

The law also expands the FMLA beyond members of the “immediate family” (spouses, children, and parents) to “next of kin.” That means aunts, uncles, cousins, and in-laws are likely to be eligible for the expanded leave.

The amendment is part of the National Defense Authorization Act (NDAA), or HR 4986. It guarantees as much as 26 weeks of FMLA leave for relatives and spouses of Reserve and National guard people who are either called to duty, or face imminent deployment.

That’s an expansion from the 26 weeks of FMLA leave traditionally offered, and which will continue to be available to those not covered by the amendment.

The new law allows a family member to take up to the maximum of 26 weeks to be a caregiver to a member of the National Guard, Reserve, or armed forces who is undergoing medical treatment.

The medical treatment would include physical and mental therapy. It also involves outpatient treatment and recuperation. Finally, it can be used to give care to a soldier who is on the temporary disability retired list for a severe injury or illness.

The NDAA guarantees that an employee can receive up to 26 weeks of the unpaid, job protected leave for “any qualifying exigency” when a spouse, parent, or child goes on active duty or is about to be called up. That may include care of children because of deployment.

The Family and Medical Leave Act (FMLA) was passed in 1993. It was not until the National Defense Authorization Act of 2008, however, that any major changes to the FMLA were made.

The new NDAA expands coverage for relatives of injured soldiers and soldiers on active duty.

The U.S. Department of Labor is busy developing regulations based on the new legislation. Details are sketchy yet, so it is not known yet whether all the FMLA’s rules will continue to apply.

The FMLA is the groundbreaking legislation that provided up to 12 weeks annually of job protected, unpaid leave.

The time may be used if the worker is seriously ill or must care for a member of the “immediate family” who is ill. “Immediate family” is defined as a spouse, child, or parent.

The law also allows workers to take the leave to care for and bond with a newborn child, a newly adopted child, or a new foster child under age 18. In that capacity it is a common maternity or paternity leave.

The FMLA requires that a worker be reinstated to his or her original job at the end of the leave. If the original job is not available, the employee must receive a job that is similar in pay, working conditions, benefits, and duties. In most cases, employees are reinstated to their original positions.

The Act applies only to firms with 50 or more employees within a 75-mile radius. There are 11 states, however, which have expanded that to include smaller companies.

No state or federal law says workers must be paid during FMLA or NDAA leave. But employers may count paid leave time, such as sick time or PTO (Paid Time Off) against the 12 weeks of FMLA leave. That can only be done if the company notifies the employee in writing before the leave begins.