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NEW LEAVE RIGHTS FOR MILITARY FAMILIES

INTRODUCTION
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On January 28, 2008, President Bush signed the National Defense Authorization Act (NDAA), which provides the first expansion of the Family and Medical Leave Act (FMLA). Under the new law, FMLA eligible employees will now be entitled to the following:

12 weeks of FMLA leave due to a spouse, son, daughter, or parent being on active duty or notification of an impending call or order to active duty in the armed forces;
26 weeks of FMLA leave during a single 12 month period for a spouse, son, daughter, parent or nearest blood relative caring for a recovering service member. A recovering service member is an armed forces member who suffered an injury or illness while on active duty that may render the person unable to perform the duties of the member’s office, grade, rank or rating.

Most of the provisions of the FMLA remain unchanged and will apply to these new types of FMLA leave. Among them:

Employees must work for a company with 50 or more employees and must have been employed for at least 12 months and completed 1,250 hours of service within that period to be eligible for the leave.

This new law became effective on January 28, 2008. The Department of Labor is working quickly to prepare more comprehensive guidance regarding rights and responsibilities under this new legislation. The NDAA also permits an employee to take FMLA leave for “any qualifying exigency arising out of the fact that the spouse or a son, daughter, or parent of the employee is on active duty in the armed forces in support of a contingency operation”. This provision of the new Act is not effective until the Secretary of Labor issues final regulations defining the phrase “any qualifying exigency”.

Please remember that both state and federal law grant benefits for military leave. The new leave and other state and federal leaves will persist as an issue in today’s workplace. Under current Massachusetts law, an employee may receive up to 17 days in a calendar year for military leave. That leave may be paid or unpaid depending upon the employer’s policy, but the leave must be given with re-employment rights and no loss of seniority. The Federal Uniform Services Employment and Re-Employment Act provide additional protections, including re-employment rights following military service for up to 5 years.

We can help. For more information about your obligation to provide time off from work, please see our publication titled: “The Employers Guide to Understanding Massachusetts Workplace Law.” To request a copy, please contact us.

Questions?
Contact info@foleylawpractice.com or call 508-548-4888

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