labor lawAdivision of labor law center

On January 28, 2008, President George W. Bush signed the NDAA (National Defense Authorization Act) HR 4986 into law. This was the first major expansion of the FMLA (Family Medical and Leave Act) since its passage in 1993.

The bill went into effect immediately, which means Rhode Island military families were entitled to take FMLA beginning January 28, 2008.

As a result of this expansion, FMLA will now provide up to 26 weeks of unpaid, job-protected leave to relatives and spouses of National Guard and Reserve personnel who are called to active service. The law allows a spouse, son, daughter, parent or next of kin to take FMLA to care for military personnel who are under medical treatment, including physical or mental therapy and treatments on an outpatient basis. FMLA leave can also be taken to care for a soldier who’s on temporary disability for serious illness or injury.

Rhode Island FMLA and NDAA

According to the federal FMLA of 1990 (Family Medical and Leave Act), eligible employees can take up to 12 weeks of leave for personal reasons. These reasons include caring for a newborn, a newly fostered child or a new adopted child. Caring for an ill family member (child, spouse, parent) is also covered by FMLA.

To be eligible for FMLA coverage, employers must have at least 50 workers in a 75 mile radius. Employees must have worked at least 1,250 hours for the same company for the previous 12 months. FMLA is job-protected and unpaid.

Democratic presidential candidate Hilary Clinton, if elected, would like to amend FMLA to make it paid leave.

Employers already incur costs when an employee is on FMLA leave, even though it’s unpaid. They must continue to pay their share of the worker’s benefits. They must fill the worker’s position for the duration of the leave, too. This can sometimes include hiring someone new, and training them.

FMLA also guarantees the worker a job upon return from leave. The employer usually provides the same job. If the same position isn’t available, the company must put the worker in a job comparable in benefits, wages and conditions.

Plus, productivity levels can drop after a worker returns to the job. Employees often require weeks to attain their previous performance level.

Ms. Clinton’s plan would amend the FMLA by requiring employers to provide insurance for each of its employees. This insurance would provide the pay when the worker is on FMLA leave.

California already has a law on the books to provide paid FMLA. Hawaii’s leave isn’t paid, but the state law extends the definition of family member to grandparents, in-laws and domestic partners. Several other states simply extend FMLA by providing more than 12 weeks of leave.

In addition, the NDAA allows workers to take FMLA leave for “any qualifying exigency” regarding a family member who has been called to active duty. This “exigency” can include caring for children of a deployed soldier, or to care for an ill person previously under that soldier’s care.

According to FMLA currently in place, a family member was defined as spouse, parent, or child. As a result of NDAA, FMLA has been expanded to include “next of kin”. In some cases, the “next of kin” could include in-laws, cousins, aunts and uncles, which would allow them to take unpaid leave.

The regulations, including exactly what constitutes “any qualifying exigency” are still being drawn up by the U. S. Department of Labor. Until the final regulations are published, the NDAA is not technically in effect. Once the regulations are finalized, they will be sent to the White House for approval. Upon approval, the U. S. Department of Labor will publish the results.

Until publication, the U. S. Department of Labor requires employers to “act in good faith” and grant leave to eligible workers. To manage the leave, companies can utilize FMLA procedures already in place, such as medical certification and substitution of paid leave.

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