Military Family Leave

Since 1993, the Family and Medical Leave Act (FMLA) has provided unpaid leave to individuals with serious health conditions who need to take leaves of absence from their places of employment and to individuals who are caregivers for family members with serious health conditions. This leave is unpaid, but while an individual is on FMLA leave, they cannot be terminated from their position and their benefits (e.g., health insurance) must continue for the duration of their leave.

FMLA allows 12 weeks of unpaid leave during a 12-month period, to cover:

• The birth of a child and associated care for the newborn, within one year of birth

• The placement of a child due to adoption or foster care and care for that child, within one year of placement

• Care for a spouse, child, or parent with a serious health condition

• A serious health condition that prevents the employee from performing their job

In 2008, Military Family Leave provisions were added to FMLA, providing additional protections specific to military families, to include qualifying exigency leave and military caregiver leave.

Note that in order to be eligible for FMLA and therefore the Military Leave Provisions of FMLA, an individual must work for a covered employer (typically, one that employs at least 50 people) and meet additional requirements:

• Been employed for at least 12 months

• Completed at least 1250 work hours within the past 12 months before FMLA leave is set to begin

• Work at a site where at least 50 other employees work within 75 miles

Public agencies, including the federal government, state and local governments, and elementary and middle schools, are all covered by FMLA.

Qualifying Exigency Leave

Qualifying Exigency Leave allows an eligible employee to take up to 12 weeks of unpaid leave for the purposes of addressing issues related to the upcoming and immediate deployment of a servicemember.

Who is eligible for Qualifying Exigency Leave?

Provided they are covered by FMLA, eligible individuals include the spouses, parents, and children of the servicemember.

The servicemember must have received active duty orders for deployment to a foreign country. Those serving in the National Guard or reserves must be called to active duty and provided orders for deployment to a foreign country.

What “exigencies” qualify for leave?

There are a number of issues that may arise when a servicemember leaves the country for a period of time. The following exigencies qualify for leave:

• Short-order deployments (i.e., when a servicemember is called to deploy with seven or fewer days notice) allow the employee to take leave for up to seven days, beginning when the servicemember was notified of the deployment

• To complete financial and/or legal tasks associated with deployment (e.g., completing powers of attorney)

• To complete the arrangement of childcare-related tasks associated with deployment (e.g., finding daycare, transferring to a new school)

• To complete the arrangement of tasks associated with caring for the servicemember’s parent if the parent is incapable of self-care (e.g., arranging at-home care, finding an inpatient care facility)

• To attend mental health counseling for the employee or the child of the employee and servicemember, when the need for counseling arises due to the deployment

• To attend military-related events (e.g., briefings, family meetings, ceremonies)

• To spend time with the servicemember while they are on R&R leave (for up to 15 days)

• To attend post-deployment events (for up to 90 days after the servicemember returns home, to include funeral services)

The above list may not be wholly inclusive; Qualifying Exigency Leave allows for an employer and an employee to agree on events not listed above related to the deployment of a servicemember and to provide leave for those events.

Military Caregiver Leave

Military Caregiver Leave allows an eligible employee to take up to 26 weeks of unpaid leave for the purpose of caring for a servicemember or veteran with a qualifying injury or illness.

Who is eligible for Military Caregiver Leave?

Provided they are covered by FMLA, eligible individuals include the spouses, parents, children, and next of kin of the servicemember. A next of kin may be a blood relative designated by the servicemember as their next of kin for the purposes of FMLA, or, if no one is specified, a servicemember’s next of kin may be a blood relative with legal custody, a brother or sister, a grandparent, and aunt or uncle, or a first cousin (in that order).

What injuries or illnesses qualify for Military Caregiver Leave?

A serious injury or illness is one that occurred during the line of duty on active duty or was made worse during a servicemember’s active duty service. The injury or illness must prevent the servicemember from performing their duties as assigned. A servicemember must be undergoing treatment, rehab, or therapy for the injury or illness.

If the servicemember is separated from the military, the injury or illness may still qualify provided that the condition was incurred while they were on active duty or was made worse by their active duty service. Further, the injury or illness must have either prevented them from performing duties as assigned, resulted in a service-connected disability rating of at least 50%, substantially impaired their ability to work, or provided the reasoning for their enrollment in Comprehensive Assistance for Family Caregivers.

Can Military Caregiver Leave be taken more than once?

Military Caregiver Leave can be taken for up to 26 weeks within a 12-month period. It is available once per servicemember per injury or illness.

However, if the servicemember’s status changes from active to veteran, or the servicemember suffers another service-related injury or illness, an individual may be able to take additional Military Caregiver Leave provided the 26-week allotment per year has not been exhausted.

Taking Leave

Once an employee knows that they need to take leave, they are required to notify their employer. Typically, this is as simple as reaching out to the company’s HR department and informing them of the need for FMLA.

Within five business days, the employer is required to respond to the FMLA request, confirming whether the employee is eligible for FMLA. Those who are eligible will be provided with their FMLA Rights and Responsibilities, and they may receive a request for certification – which consists of supporting documents that show a need for leave. These may be records from a health care provider, documents showing a veteran’s disability status, a statement of need for FMLA, active duty orders, and more. Typically, an employee has 15 business days to provide the certification form and supporting documents back to their employer.

After five additional business days, the employer will notify the employee whether their FMLA leave has been granted. Provided leave is granted and qualifies for FMLA, the employee’s leave is protected and there can be no retaliation for time off once the employee returns to work. If their exact job is not available when they return, the employee must be allowed to return to a nearly identical job.