labor lawAdivision of labor law center

Oregon employers should be aware that the new National Defense Authorization Act (NDAA) of 2008 provides for an expansion of FMLA leave to up to 26 weeks in a year.

The new provision applies to families of military personnel, specifically to those of an injured solider in active military service, or on deployment with the National Guard or Reserve. According to the new NDAA, a parent, spouse, son or daughter can take expanded FMLA leave to care for a family member who is an injured soldier. Under this provision, aunts, uncles and cousins, may also be allowed expanded FMLA in some cases as “next of kin”.

Oregon FMLA Expansion

It was almost certain that the Family Medical and Leave Act (FMLA) would be expanded at some point in 2008.

The proposed new bill provides up to 26 weeks of unpaid, job-protected leave for family of National Guard and Reserve personnel who have been called to active duty. This leave is meant to allow spouses and relatives to take over for those active duty personnel in matters of caring for an ill parent or child and in taking care of healthy children.

A bill proposing these terms was vetoed by President George W. Bush on December 28, 2007. The expanded FMLA, however, was not the reason for the veto. Instead, the bill was attached to the National Defense Authorization Act, which President Bush felt 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.”

Proponents of the FMLA expansion were not happy. They want FMLA expanded, arguing that the extended tours of duty in Iraq for Reserve and National Guard personnel have strained the families of these soldiers.

Critics of the FMLA expansion approve the veto, explaining that enacting such a measure would strain the country’s employers. These critics suggest that if the government wishes workers to have more leave, then the government should pay for it.

The current FMLA allows up to 12 weeks of leave for an employee to care for a sick child or parent, or for a newborn baby, newly adopted child or a child that’s newly fostered. It can not be used for an employee to take care of healthy children. For example, a woman has three sons and is diagnosed with cancer. Her husband can take FMLA to care for her, but not to take charge of their sons.

Since President Bush’s reasons for vetoing the bill weren’t tied to the FMLA expansion, it’s possible it may be added to another bill later in 2008.

Currently, under traditional FMLA (Family Medical and Leave Act) leave, an employee can take unpaid, job-protected leave for up to 12 weeks per year for certain personal reasons. These reasons include caring for an ill spouse, child or parent, and for the care of a newborn child, a newly adopted child and a newly fostered child.

In addition to caring for injured military personnel, the new NDAA permits parents, spouses, sons and daughters to take expanded FMLA leave to stand in for a family member who is a solder called to active duty. This provision allows a family member to not only take care of an ill person in that soldier’s charge, but also to care for his or her healthy children, too.

The new NDAA went into effect immediately, allowing families of soldiers to start taking extended FMLA leave as of January 28, 2008.

The U.S. Department of Labor is scrambling to finalize the details of the NDAA, which could take several weeks. Interim regulations allow companies to charge paid leave to the 26 weeks of unpaid FMLA, as long as the employee is informed in advance. Until the finalized regulations are published, the U. S. Department of Labor expects companies to comply with the expanded FMLA to the best of their ability.

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