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NDAA Expands FMLA in Nevada

February 29th, 2008 Posted by Amelia

Employers should be granting a newly expanded FMLA leave now to relatives and spouses of active duty Reserve and National Guard members.

A new law, the National Defense Authorization Act of 2008 (NDAA), went into effect on January 28, 2008, and became effective immediately. The President signed the bill to amend the FMLA leave from 12 weeks to 26 weeks for military families.

The U.S. Labor Department is completing regulations for the expanded FMLA coverage, but in the meantime employers are expected to act in good faith to comply with the legislation.

The NDAA essentially amends the Family and Medical Leave Act. So the U.S. Labor Department is urging employers to use the existing FMLA procedural guidelines for unpaid leave. That includes medical certification and paid leave substitution.

It also appears that the NDAA allows workers to take the maximum of 26 weeks for what is called “any qualifying exigency” if a spouse, parent, son or daughter of an employee is called to active duty. Time off to care for children, when a family member is on active duty, is likely to be part of the plan.

However, information at this point is somewhat contradictory. On the one hand the provision does not become effective, at least technically, until the U.S. Labor Secretary releases the final regulations. They should describe what is included in the term “qualifying exigency.” On the other hand, the Labor Department is “encouraging” employers to make a good-faith effort to provide the leave immediately.

The NDAA enlarges FMLA to include “next of kin” as a person entitled to NDAA leave when the soldier is injured. . Aunts, uncles, cousins and in-laws of the soldier could qualify for the 26 weeks of leave.

The law guarantees 26 weeks of the unpaid FMLA leave so a spouse, child, parent or next of kin may take care of a member of the military services who is getting medical treatment. That would include mental and physical therapy, outpatient treatment, recuperation, or caring for someone on the temporary disability retired list for a severe injury or illness.

Until 1993, employers in Nevada and elsewhere in the U.S. were under no obligation to provide workers with job protected, unpaid leave for an illness. If a worker got a heart attack or had to undergo chemotherapy or major surgery, he or she could be fired for taking 2 or 3 weeks of work off.

That all changed with the Family and Medical Leave Act, or FMLA. With the passage of the Act, workers could take as much as 12 weeks of unpaid but job protected leave during any 12-month period if there is a serious illness.

“Job protected” means the employee was now guaranteed his or her job back at the end of the leave. If it was impossible to provide the same job, then one with very similar duties, pay, benefits and conditions must be offered.

FMLA allows workers to take leave also to care for a seriously ill member of the “immediate family,” namely spouses, children, or parents. Some states have expanded that. Hawaii, for example, allows workers to take leave to care for grandparents or in-laws with serious illnesses.

FMLA is also a maternity/paternity leave. It allows workers to take the time to bond with a newborn child, a newly adopted child, or a new foster child under age 18.

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.