labor lawAdivision of labor law center

As of January 28, 2008, relatives and spouses of active military, Reserve and National Guard are eligible to take up to 26 weeks of unpaid leave under FMLA. This leave can be to care for an injured soldier, or to attend to other family situations, such as caring for children.

The expansion of the FMLA is a result of President George W. Bush signing the National Defense Authorization Act of 2008, HR 4986 into law on January 28, 2008. The law went into effect immediately, allowing families of military personnel to take FMLA leave immediately. The traditional FMLA (Family Medical and Leave Act) provided job-protected, unpaid leave to eligible employees for up to 12 weeks.

In Florida and across the country, employees are allowed by the Family Medical and Leave Act of 1990 to take up to 12 weeks of unpaid, job-protected leave every 12 months.

Not all companies and workers are covered by FMLA leave. A business must have 50 or more employees in a 75 mile radius. Workers are usually required to be employed at the same company for 1,250 hours for the previous 12 months.

For eligible employers and employees, FMLA leave can be taken for a number of personal scenarios. If a family member (parent, child or spouse) is seriously ill, the worker can take FMLA to care for that person. FMLA can also be taken to care for a newborn child, a newly adopted child and a newly fostered child.

While on FMLA leave, the employer and the employee must each continue to pay its share of benefits costs.

The employer can incur other costs as well. The company will need a replacement during the worker’s FMLA leave, which can include the expense of hiring and training new personnel. When the employee returns, the company can lose productivity as the worker takes time to get back up to speed.

All workers on FMLA are guaranteed a job when they return from leave. Usually, it’s the same position, but can also be a position with similar pay, benefits and working conditions

If democratic presidential candidate Hilary Clinton is elected, the costs to employers could increase. Ms. Clinton wants to amend FMLA to allow workers to receive pay for FMLA leave.

Pay for FMLA leave isn’t new. California enacted a law at the state level that allows many employees to be paid for FMLA. Other states have enacted laws to amend and extend FMLA. Some extend the length of time off beyond 12 weeks. Others, like Hawaii, extend the definition of family member to grandparents, in-laws and domestic partners.

Amending the law at the federal level, however, would increase costs for eligible employers across the United States. How companies would manage the increased financial burden isn’t known at this time.

The NDAA provision to expand the FMLA has several purposes. One, the Act gives families of military extended leave beyond the traditional FMLA allotment of 12 weeks. Two, the Act adds “next of kin” to the list of eligible family members, which could allow in-laws, cousins and aunts and uncles to take FMLA to care for an injured or ill soldier. Three, the Act provides leave for a spouse, parent, son or daughter to stand in for military personnel called to active duty. While the soldier is away, the relative or spouse can care for whoever was in that soldier’s charge, including watching over healthy children.

The term used in the NDAA for the third provision of the expanded leave is “any qualifying exigency.” As yet, the details for this provision and for the entire NDAA have not been published. That duty falls to the U. S. Department of Labor, which is working to finalize regulations for White House approval. Once approved, the rules for FMLA will be enforced by the Wage and Hour Division of the U S. Department of Labor.

Since, technically, the NDAA isn’t in effect until the Secretary of Labor publishes the regulations, the U. S. Department of Labor requests employers “act in good faith” to grant all eligible families the expanded FMLA leave. FMLA protocols and procedures already in place, such as medical certification and substitution of paid leave, are excellent tools to manage the new leave.

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