On Jan. 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act of 2008 (NDAA), which grants new leave rights to employees with family members in the military. Because the NDAA amended the—not the Uniformed Services Employment and Reemployment Rights Act (USERRA)—the changes apply only to employers with 50 or more employees.
The amendment creates a new qualifying reason for leave. Eligible employees may take up to 12 weeks of unpaid leave over a single 12-month period because of “any qualifying exigency” arising from when an employee’s spouse, child or parent is called up for active-duty military service. The law requires the U.S. Secretary of Labor to issue regulations that define what constitutes “any qualifying exigency.” Until the U.S. Department of Labor publishes the full regulations, employers are encouraged but not legally required to comply with this provision.
In addition, the NDAA more than doubles the amount of leave available to employees to care for a family member injured in the line of duty. A spouse, parent, child or next of kin (defined as the nearest blood relative) may take up to 26 weeks of unpaid leave to care for a covered service member recovering from a service-related injury or illness. This provision became fully effective when President Bush enacted the law.
Military runs concurrently with existing , not in addition to it.
During a 12-month FMLA period, an eligible employee is entitled to a maximum of 26 workweeks of leave if the leave includes time to care for a covered service member. For example, a qualified employee who takes 12 weeks of nonmilitary-related FMLA leave may take up to an additional 14 weeks of military family leave for a combined total of 26 weeks. The leave may be taken intermittently or on a reduced leave schedule.
Employees may elect (or employers may require) to use accrued paid vacation leave, personal leave, sick leave or medical leave for any part of the 26-week period. Employers are not required to provide any additional paid leave under the NDAA.
As with ordinary FMLA leave, employers may request documents to support the need for leave, such as certification from the service member’s health care provider.
How to comply
There are different compliance requirements for “qualifying exigency” leave and caregiver leave.
Leave for a qualifying exigency: This leave is designed to help employees meet family needs that arise as service members prepare for or return from deployment. The DOL has indicated that a qualifying exigency may include such situations as arranging for child care, making financial and legal plans, attending counseling relating to active-duty deployment or attending a service member’s farewell or welcome home ceremony.
The amendment requires employees to give notice of the need for leave insofar as it is reasonable and practical.
Advice: Until the DOL releases full guidelines, employers should liberally grant qualifying exigency requests.
Caregiver leave: The law provides up to 26 weeks’ leave to family members of eligible service members injured in the line of duty.
Eligible service members include any member of the “Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”
The law defines a serious injury or illness as one “incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.”
Note: This definition includes not only service members who are wounded in combat, but also those who suffer just about any disabling illness or injury while engaged in active service. The only exception is for injuries that result from the service member’s misconduct. Under this definition, family members of soldiers injured in car accidents or diagnosed with cancer while on active duty are eligible for caregiver leave.
The amendment covers only illnesses and injuries sustained during active duty. It does not include injuries sustained by reservists while performing regular reserve duties.
Note: Several states have military family leave laws that may grant rights beyond those provided by the NDAA.
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