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People's Law Guide

 

Veterans: Workplace Leave Laws for Vets & Their Families

11/24/12

      Most employers are not yet aware that the Family & Medical Leave Act now permits employees to be absent from work for up to 26 weeks when acting as caregivers to servicemembers injured in Iraq or Afghanistan.  The National Defense Authorization Act, signed into law by President Bush in late January, 2008, gives extended leave rights to a spouse, child, parent or next of kin to care for relatives injured or becoming ill in active duty.

      Previously, only immediate family members have been eligible to utilize FMLA privileges and they could take no more than 12 weeks leave during any one year period. This, the first time FMLA has been changed since becoming law in 1993, also extends leave rights to service persons’ family members beyond a parent, child or spouse, so long as they qualify as the “nearest blood relative.” New regulations from the U.S. Department of Labor specify that adopted children, remarried surviving spouses, and grandparents of injured troops are among the relationships covered by this “blood relative” provision.

      Relatives qualify for extended FMLA protections to assist in caring for servicemembers “undergoing medical treatment, recuperation, or therapy” for serious injuries or illnesses. Family members may also utilize the new FMLA rules to care for servicemembers on the “temporary disability retired list” or to assist those seriously injured or ill receiving outpatient care. Servicemembers are defined as those providing duty in the Armed Forces, National Guard or Reserves.
 
      Importantly, the use of “military leave” rights “does not limit the use of regular FMLA leave during any other 12 month period”, according to the U.S. Office of Personnel Management.  Employees are entitled to use up to 12 weeks of regular FMLA leave immediately following the single 12 month period, according to an OPM Memorandum. Employers are required to provide written notification to members of their workforces about the new  expansion of FMLA rights.

      With the provisions described above now legally in force, DOL anticipates implementing new regulations permitting family members to take leave when “qualifying” emergency situations impact sevicemembers, including circumstances pertaining to child care arrangements, making financial / legal arrangements to address servicemember’s absences, and attending counseling sessions related to active duty.  DOL is urging employers to “act reasonably” by permitting workers to use additional FMLA rights which will soon become part of its official regulations.

      FMLA applies to those who work where there are 50 or more workers within a 75 mile radius of their jobsites. Privileges extend to those working at least 1,250 hours in the past year and having at least one year of seniority, though work tenure need not have accrued over 12 consecutive months. Also, employees such as salespersons and truck drivers who report to distant worksites having at least 50 employees within the required radius need not themselves be based at those worksites.

      Workers believing they suffered discrimination or retaliation because of their need to take FMLA leave can file lawsuits against employers.  When workers demonstrate employers committed “bad faith” violations, they are entitled to receive double the amount of their economic damages.  Even when violations were found to have been committed without “bad fath” intentions, full reimbursement for wage loss and economic damages must occur, plus payment for legal fees arising from the lawsuit.

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