labor lawAdivision of labor law center

A new law permits spouses, parents, sons and daughters to take FMLA leave to care for an injured soldier. “Next of kin” are also covered by the new law, which means in some cases aunts, uncles and cousins may also be able to take FMLA leave.

The National Defense Authorization Act of 2008 (NDAA), expanded the parameters of the FMLA (Family and Medical Leave Act).

The soldier may be active military, or a deployed member of the Reserve or National Guard.

In addition to extending leave to families of soldiers, NDAA expands the amount of leave as well. Traditional FMLA allows up to 12 weeks of unpaid leave per year, while the new NDAA permits up to 26 weeks.

California FMLA Expansion

This was not the first attempt to pass the NDAA. On December 28, 2007 President George W. Bush vetoed a bill that would have extended Family and Medical Leave to employees whose child, parent or spouse is called to active military duty.

The veto of bill HR 1585, however wasn’t due to the extended FMLA, but because it was included in the National Defense Authorization Act. According to the White House approving the 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.”

Some criticize President Bush, claiming the veto will place an undue burden on families of the National Guard and Reserve who are serving in Iraq.

Others applaud President Bush, declaring that an extended FMLA will place undue burden on employers.

It is still likely, however, that 2008 will see a law to extend FMLA to families of the military, expanding FMLA coverage in California and throughout the country.

Currently, FMLA provides up to 12 weeks of unpaid, job-protected leave for employees to care for a sick family member, or themselves. The bill that was vetoed would have provided up to 26 weeks, or 6 months, of this type of leave for spouses and other relatives of military called to active duty.

The point of the expanded FMLA is to allow family to step in for the National Guard or Reserve member in order to take charge of his or her children, or to care for an ill parent. The leave would be available once per 12 month period.

The current FMLA doesn’t allow for an employee to care for healthy children, except for newborns, newly adopted or newly fostered children. For example, a stay at home mom succumbs to cancer. Her husband can take FMLA to care for her, but not to watch over their healthy children.

Since the veto of bill HR 1585 didn’t relate to the expanded FMLA, the door is open for this leave to be added to another bill later in 2008.

Prior to passage of the NDAA, FMLA leave could only be used to care for a child, parent or spouse when he or she was ill. Caring for healthy children was permitted only upon birth of a child, the adoption of a child, or newly fostering a child into the home. To illustrate, a stay-at-home mom is diagnosed with a long-term illness. Her husband can take FMLA to care for her, but not take care of their healthy children.

In addition to caring for an injured soldier, the NDAA permits spouses, sons, daughters and parents to take unpaid FMLA when a family member is called to active duty. That family member then may stand in for that soldier while he or she is on deployment. This could include taking care of a sick child, or caring for healthy children.

The law went into effect immediately, allowing families to take leave as of January 28, 2008. The U. S. Department of Labor is working to finalize the regulations and hopes that until the information is published, employers will make their best effort to comply.

President Bush previously vetoed an NDAA bill with this extended FMLA law, but explained that veto wasn’t due to the leave portion of the bill. This statement opened the door for the expanded FMLA to be attached to another bill and gain its recent passage.

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