labor lawAdivision of labor law center

Under federal regulations that went into effect in February, every employer is required to prominently display a Military Leave Notice. The poster explains the leave for military families available under NDAA.

As of January 28, 2008, relatives of National Guard and Reserve personnel on active duty will be eligible to take up to 26 weeks of unpaid, job-protected FMLA leave. The provision also covers families of active military personnel.

The law went into effect immediately, so companies are required to grant leave to family members to care for an injured soldier. Previously, under the FMLA the definition of family member was limited to parent, spouse or child, but the 2008 NDAA includes “next of kin”, which could include aunts, uncles, cousins and in-laws to be eligible for FMLA leave.

This provision comes as a part of HR 4986 the National Defense Authorization Act (NDAA), which President George W. Bush signed into law on January 28, 2008. This law expands the FMLA (Family Medical and Leave Act) from 12 weeks to 26 weeks for military families.

FMLA, NDAA and the Military Leave Notice

The Family Medical and Leave Act of 1990 allows employees to take up to 12 weeks of leave in a 12 month period for certain personal reasons. This leave is job-protected, but unpaid. If democratic presidential candidate Hilary Clinton is elected, she wants to amend FMLA to be paid leave. Ms. Clinton’s plan would require companies to carry insurance for each worker to provide for this paid time off.

Employers already incur costs with FMLA, even though the leave is unpaid. First, a replacement for that worker must be hired and trained. Second, the business is required to continue to pay its share of the employee’s benefits. Third, productivity levels can be reduced, because the returning worker takes time to regain his or her previous level of performance.

Amending the FMLA will cost employers even more.

Not all employers, or employees, are covered by FMLA. Companies must employee more than 50 workers in a 75 mile radius. Workers are usually required to have logged at least 1,250 hours for that employer over the prior 12 months to be eligible for FMLA.

Not all scenarios are covered by FMLA, either. The current Act allows employees to charge their leave to FMLA for the birth of a child, bringing a new foster child (under the age of 18) into the home, and for adopting a child. Caring for an ill family member may also be charged to FMLA. Under the Act, family member includes child, parent or spouse, but not in-laws, siblings or grandparents. Domestic partners are also not covered by FMLA.

Plus, not all states handle FMLA in the same manner. Some, like California have already enacted state legislation where employees can be paid for FMLA leave. Hawaii adds grandparents, in-laws and domestic partners to the definition of family members, and several states extend the leave beyond 12 weeks.

All employers, however, must provide the employee with a job upon returning from FMLA. That job must either be the same position or a job with similar working conditions, pay and benefits.

The point of the expanded FMLA is to allow a parent, daughter, son or spouse to care for a member of active military, National Guard or Reserve under medical treatment. Included are mental or physical therapy, outpatient treatments and caring for military personnel on temporary disability as the result of illness or injury.

In addition, the new NDAA allows family members to take FMLA leave to stand in for soldier called to active duty. The family member can stand in for the soldier on deployment as a substitute for persons under that soldier’s care. For example, a parent of a deployed soldier could take FMLA leave to help care for that soldier’s ill spouse, or to take care of the healthy children.

Enforcing the new law comes under the U. S. Department of Labor’s Wage and Hour Division. Unfortunately, all the regulations of the NDAA have not yet been finalized. Until the Secretary of Labor issues final regulations, the NDAA isn’t technically in effect. Until that time, the U. S. Department of Labor expects employers to “act in good faith” and grant FMLA leave to eligible military families.

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