labor lawAdivision of labor law center

Iowa employers need to be aware that the NDAA law went into effect immediately and the U. S. Department of Labor is scrambling to finalize regulations for this new policy, which will be submitted to the White House for approval.

The National Defense Authorization Act (NDAA) of 2008 was signed into law on January 28, 2008 by President George W. Bush. Within the NDAA is a provision to expand the FMLA (Family Medical and Leave Act) to provide up to 26 weeks for spouses and relatives of National Guard and Reserve personnel who are called to active duty.

Until regulations are published by the Secretary of Labor, companies should utilize FMLA procedures, such as medical certification and substitution of paid time, to grant leave for family members to care for injured soldiers.

Understanding Iowa FMLA and NDAA

When an Iowa employee takes time off for the birth of a child, to adopt a child, or to place a newly fostered child (under age 18) in their home, that worker can charge the time to FMLA (Family Medical and Leave Act) leave. FMLA also provides time off to care for a sick child, parent or spouse.

Currently, FMLA leave is job-protected, but unpaid.

If democratic presidential candidate Hilary Clinton is elected, however, FMLA could be amended such that FMLA leave is paid. The plan would be mandatory and require companies to take out insurance on each worker to provide the paid FMLA leave.

If the FMLA is amended, employers will incur even greater costs than they currently bear. Though the leave is now unpaid, companies must maintain its share of benefit and healthcare costs. Plus, the business has to temporarily fill the worker’s position, which could mean the expense of hiring and training new personnel. Productivity levels can also be a cost to the employer, because returning employees often take weeks to get back to their prior performance levels.

In addition, employees are not required to take FMLA time all at one time, but can do so intermittently without giving advance notice.

Some states have already enacted laws at the state level to extend FMLA. Some states simply provide more than 12 weeks of leave. In Hawaii, the law includes caring for grandparents, in-laws and domestic partners. For many California employees the state laws already allow them to receive pay for FMLA leave.

FMLA does not apply to all companies and workers. To be eligible, employees must work at least 1,250 hours for the same company for 12 consecutive months. Eligible companies must have 50 employees within a 75 mile radius.

FMLA guarantees the employee a job when he or she returns to work. This job can either be the same position, or a job with a comparable salary and similar benefits and working conditions.

The expanded FMLA increases the current 12 weeks of unpaid, job-protected leave to 26 weeks for military families. Spouses, daughters, sons and parents can take this leave to care for a member of the National Guard, Reserve or active military who is undergoing physical or mental therapy, outpatient treatments or recuperating from illness. In addition, FMLA leave can be granted to care for soldiers on temporary disability due to illness or injury.

The FMLA expansion of the NDAA also includes the addition of “next of kin” as eligible persons to take leave. This means that aunts, uncles, cousins or in-laws to take unpaid FMLA leave.

In addition to caring for an injured soldier, FMLA allows a spouse, son, daughter or parent to take leave when a soldier is informed of imminent deployment. This leave would allow families of deployed military to stand in for that soldier while he or she is on active duty, to care for anyone in that soldier’s care. This provision of the FMLA will most likely be used to care for healthy children, but can also be used to care for an ill family member.

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