labor lawAdivision of labor law center

A new law will permit the relatives of soldiers to take up to 26 weeks of unpaid leave under FMLA to care for their family members.

On January 28, 2008, President Bush passed the National Defense Authorization Act, an expansion of FMLA (Family and Medical Leave Act) leave.

The new NDAA (National Defense Authorization Act) of 2008 went into effect immediately, permitting eligible persons to take leave as of January 28, 2008.

Eligible persons are defined as sons, daughter, parents and spouses of an injured soldier. This soldier can be National Guard or Reserve who is on deployment, or active military.

The expanded FMLA allows these family members to take up to 26 weeks (6 months) of unpaid leave to care for that soldier. This Act includes “next of kin” which may also permit aunts, uncles or cousins to take the expanded leave.

Virginia FMLA Expansion

The FMLA, Family Medical and Leave Act provides up to 12 weeks of unpaid, job-protected leave for employees to care for a sick child or ill parent. It is possible that later in 2008, the FMLA will be expanded to provide up to 6 months of this type of leave to relatives and spouses of military called to active duty.

The effect of enacting the extended leave would expand FMLA coverage all over the country, including Virginia.

As the Act stands now, an employee can not take FMLA to care for healthy children, except when newly born, newly fostered or newly adopted. So, if a mother of three is called to active duty, her non-military husband can not take FMLA to care for their healthy children.

Bill HR 1585 included the expanded FMLA, allowing up to 26 weeks of this type of leave. Included in this expansion was the right for relatives of members of the National Guard or Reserve to take FMLA to step into the domestic role the soldier was leaving behind, whether it is to care for an ill parent, or to watch over healthy children.

Bill HR 1585 was vetoed by President George W. Bush on December 28, 2007, but not because of the FMLA. This bill was included in the National Defense Authorization Act and, according to the White House 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.”

Persons in favor of the extended leave criticized President Bush’s veto. They argue that the extended terms of service in Iraq for National Guard and Reserve are putting undue burden on the families of these military personnel.

Others approved of President Bush vetoing the bill. They countermand that longer FMLA leave will put a burden on the nation’s employers. They also suggest that if the government wants to provide military families with more leave, that the government should foot the bill.

This statement allowed the FMLA expansion to be attached to another bill and to be passed into law.

Traditionally, FMLA leave is capped at 12 weeks, and applies to caring for a newborn, a newly adopted child, a newly fostered child, or a sick family member (defined as parent, spouse or child).

This new NDAA increases the amount of leave to 26 weeks, but also permits parents, spouses, sons and daughters to take unpaid FMLA leave when a family member is called to active duty. This provision allows family member’s to take responsibility for whoever was in that soldier’s charge. A parent, spouse, son or daughter could take FMLA leave to care for someone who is ill, or to take over the care of healthy children.

The U. S. Department of Labor will publish the details of the new NDAA as soon as the regulations are finalized. Until that time, it expects employers to comply with the new leave law to the best of their ability.

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