labor lawAdivision of labor law center

Thanks to new legislation, family members and the next of kin of Wisconsin active duty soldiers will be able to take off as much as 26 weeks of unpaid job protected leave from work under certain conditions

The recently signed bill appears to allow employees to take the time either to care for an injured soldier or to help care for a child if a member of the military is called to active duty.

The President signed the bill on January 28, 2008. It is the National Defense Authorization Act of 2008 (NDAA), or HR 4986. It essentially expands the Family and Medical Leave Act (FMLA) by providing up to 26 weeks of the FMLA leave for relatives and spouses of Reserve and National Guard members called to active duty, among other things.

The legislation allows a worker to take the leave for “any qualifying exigency” that occurs because a spouse, son, daughter, or parent or the worker is on active duty, or even has been notified that active duty is imminent. This is likely to mean taking time off to care for a child or children when a family member in the military is deployed. Details are contradictory at this time. The provision technically does not take effect until the U.S. Labor Secretary issues completed regulations that include a definition of “qualifying exigency” and just is included under that definition. At the same time, the U.S. Labor Department is “encouraging” employers to provide the leave immediately.

The law also allows a family member - whether, child, parent, spouse, or next of kin - to take the leave to care for an injured soldier, a member of the National Guard or Reserve who is getting medical treatment. The treatment could involve receiving mental therapy or physical therapy. It could also involve recuperating, outpatient treatments, or caring for a soldier who is on what is called the temporary disability retired list for an injury or illness considered serious.

The law took effect immediately. In the absence of more detail, employers’ “good faith” compliance with the regulations is urged.

The Family and Medical Leave Act of 1993 (FMLA) was a major change for Wisconsin workers. For the first time, the law required employers to provide an employee with leave when he or she suffered from serious health problems. FMLA leave is unpaid, but job protected, meaning the worker is guaranteed the same or a similar job when he or she returns.

The only expansion of the law since its original passage is the National Defense Authorization Act (NDAA) of 2008, which, among other things, increases leave time for relatives of military personnel on active duty. The U.S. Department of Labor is scrambling to complete regulations based on the NDAA, and few details are available yet.

The FMLA provides workers with a guaranteed 12 weeks of unpaid, job protected leave yearly. The time can be used if the employee is seriously ill. Workers can also use it to care for a member of the immediate family with an illness. By “immediate family” the law refers to spouses, children or parents, but not grandparents, in-laws, or siblings.

The law is meant to allow employees to care for a newborn child, a new foster child under 18 or a newly adopted child, thus its common designation as “maternity leave” or “paternity leave.”

The Act applies only to companies with 50 workers or more within a radius of 75 miles. Again, some states have expanded coverage to include smaller firms.

While no state or federal law says workers must be paid for FMLA leave, some companies will count paid time off, including sick time, toward the employee’s 12 weeks of leave. Employers must notify the worker in writing of this before the leave begins, however.

The National Defense Authorization Act of 2008 (the NDAA) is the first significant enlargement of the FMLA since it was passed in 1993. It covers relatives of soldiers, but the U.S. Labor Department has not yet developed regulations based on the legislation, so details are still sketchy.

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1. Posted by: aimee

   Can you find someone to talk to me about being fired while on fmla?

2. Posted by: Amelia

   Hi aimee! We’re happy to answer any questions that you might have. In general, an employer can take any action against an employee on FMLA, that would have been taken anyway, if the employee was not on FMLA. So if the employer was planning on firing the employee anyway, or on laying off a group of employees, FMLA is no protection. If you have more specific questions, feel free to post them. HTH, and thanks for reading the blogs!~ Amelia