labor lawAdivision of labor law center

As of January 28, 2008, family members of injured and or active duty soldiers may take up to 26 weeks of leave to care for that soldier and/or that soldier’s family under NDAA.

In addition to caring for an injured soldier, the NDAA allows for family members to stand in for a soldier who is called to active duty. Under this provision, sons, daughters, parents and spouses may take up to 26 weeks of unpaid FMLA to care for whoever was under that soldier’s care, including ill family members and healthy children.

The NDAA (National Defense Authorization Act) of 2008 provides leave by expanding the amount of leave allowed under FMLA (Family and Medical Leave Act). According to the NDAA of 2008, sons, daughters, parents and spouses may take unpaid FMLA to care for an injured soldier, who is active military or a member of the National Guard or Reserve on deployment. “Next of kin” are covered by the NDAA, too, which in some cases may include aunts, uncle or cousins.

Montana FMLA Expansion

The federal Family and Medical Leave Act (FMLA) is likely to see an increase in coverage sometime in 2008, in Montana and across the country.

The expanded coverage would allow relatives of National Guard and Reserve members to take up to 26 weeks (around 6 months) of FMLA to stand in for that member when he or she is called to active duty. The leave would not only allow for the care of an ill child or parent, but also to care for healthy children.

The current FMLA provides up to 12 weeks of unpaid, job-protected leave to care for ill children, or a sick parent. FMLA leave can not be taken to care for healthy children, except upon being fostered, adopted, or upon birth. For instance, a stay-at-home mom is diagnosed with cancer. Her husband, according to current FMLA, can take FMLA leave only to care for her, but FMLA can’t be charged for leave taken to watch over the healthy children.

Bill HR 1585 contained the clause to extend the FMLA to military, but it was vetoed on December 28, 2007. President George W. Bush, according to the White House, explains that the bill was part of the National Defense Authorization Act which would vetoed because it 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.”

Many citizens applaud President Bush’s veto. They claim that extending FMLA would put too much burden on the country’s employers.

Others argue against the veto, claiming that with the extended tours of duty for the National Guard and Reserve are weighing down the families of these military personnel.

Since President Bush’s reason for the veto weren’t connected to the expanded FMLA, a chance still exists for it to be added to another military bill in 2008. Whether the new bill would also allow employees to take the additional 12 weeks of FMLA is unknown at this time.

Details of this policy are still being finalized by the U. S. Department of Labor. Until the information is published, the Department of Labor asks employers to do their best to comply with the NDAA leave requests.

While this plan applies to the families of active military personnel, the expectation is that spouses of deployed National Guard and Reserve members will utilize it the most.

In contrast with the extended FMLA, traditional FMLA caps leave at 12 weeks. It allows employees to take this leave to care for an ill spouse, parent or child. Caring for healthy children, however, can only be charged to traditional FMLA leave upon childbirth, the adoption of a child, or when newly fostering a child. An example would be the case of a stay-at-home mother who develops a long-term illness. Under the traditional FMLA, her husband can take leave to care for her, but can not take FMLA to care for their healthy children.

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