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Nebraska NDAA

February 27th, 2008 Posted by Amelia

For the employed spouse of an injured soldier, the amount of unpaid leave has just increased dramatically.

Instead of the usual 12 weeks in a year available under the Family and Medical Leave Act (FMLA), you can now take 26 weeks, or more than 6 months.

The change is effective immediately, and is a result of the new National Defense Authorization Act (NDAA) of 2008, passed at the end of January.

The U.S. Labor Department is rushing to develop a set of regulations based on the new law. Information should be published when it becomes available, probably in several weeks. In the meantime, employers are expected to act in good faith to comply with the law.

Under the NDAA, it appears that employers will continue to be able to count paid leave time against the 26 weeks of unpaid leave time. He or she must inform the employee in advance, however, that the paid leave is being deducted from the 26 total weeks of leave.

President Bush in December of 2008 vetoed the first version of the expanded FMLA when it was attached to the National Defense Authorization Act. At the time, the President said his veto was not because of the FMLA expansion, but because the larger bill 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.”

That remark opened the way to a reprise of the expanded leave, and in January of 2008 it passed handily.

The NDAA allows spouses, parents, sons and daughters to take the FMLA leave to nurture an injured soldier who is either regular military or a member of the Reserve or National Guard on deployment. Under some conditions, aunts, uncles and cousins (“next of kin” in the new law) may qualify.

Besides being used to care for an injured soldier, the time may be used if a soldier is called to active duty or will be deployed imminently. That use of the NDAA is likely to be taken advantage of by spouses of Reserve or National Guard members.

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 only covers companies with 50 or more workers within 75 miles, although 11 states in the U.S. have extended the law to cover smaller firms.

Employers are allowed to count paid leave, such as sick time or PTO (Paid Time Off) against the 12 weeks of FMLA. However, the employee must be notified of that intention in writing before his or her leave begins.

“Job protected” means the employee is entitled to the same or similar work when he or she returns. If the same job cannot be provided then the employer must provide one with similar pay, duties, working conditions, and benefits.

While the FMLA limits leave to care for “immediate family,” some states have expanded that. Hawaii, for example, allows workers to take job protected unpaid leave to care for grandparents or in-laws.

Before the passage of the FMLA, employers were under no obligation to keep an employee who had to take time because of serious illness, even if the worker underwent chemotherapy or major surgery.