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What Employers Should Know About the FMLA and their Military Employees and Family Members
By Elizabeth M. Garcia on May 21, 2013

The Federal Family and Medical Leave act provides for military family leave. The entitlements are Military Caregiver Leave, also referred to as Covered Servicemen Leave, and the Qualified Exigency Leave. To be eligible to take FMLA leave for any qualified reason, including the Military Caregiver Leave and the Qualifying Exigency Leave, an employee of a covered employer must have worked for the employer for a total of 12 months, have worked at least 1,250 hours of the period of 12 months. 

The Federal Family and Medical Leave act provides for military family leave. The entitlements are Military Caregiver Leave, also referred to as Covered Servicemen Leave, and the Qualified Exigency Leave. To be eligible to take FMLA leave for any qualified reason, including the Military Caregiver Leave and the Qualifying Exigency Leave, an employee of a covered employer must have worked for the employer for a total of 12 months, have worked at least 1,250 hours of the period of 12 months. Military FMLA leave is not permitted for former or retired military members because they are not considered covered servicemembers. This includes members that are on the permanent disability retired list.

The Military Caregiver Leave

Eligible employees who are family members of covered servicemen are entitled take up to 26 workweeks of leave in a single 12 month period to care for the servicemember with a serious illness or injury incurred in the line of duty on active duty. Eligible employees are including “spouse, son, daughter, parents, or next of kin”. A covered serviceperson is a “member of the Armed Forces, including members 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” that occurred in t he line of active duty. A serious injury or illness is an injury incurred by covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of the member’s office, grade, rank, or rating.

The 26 workweeks entitlement is a provision that extends FMLA job-protected leave beyond the normal 12 weeks of FMLA leave. This provision also extends FMLA protection to additional family members (i.e. next of kin) beyond those who may take FMLA leave for other qualifying reasons.

An employee must provide 30 days advance notice of the need to take FMLA leave for planned medical treatment for a serious injury or illness of a covered servicemember. When 30 days notice is not possible, the employee must provide notice as soon as practicable.

An employee does not need to specifically request FMLA, or even mention FMLA leave, when providing notice. The employee must provide sufficient information to make the employer aware of t he need for FMLA leave and the anticipated timing and duration of the leave.

The employer is permitted to request verification of serious injury or illness. A certification must be completed by the health providers on a form developed by the Department of Labor.

Qualifying Exigency Leave

This entitlement provides families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation. This entitled arises out of the fact that the spouse, or a son, daughter, or parent of t he employee is on active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. This provision makes the normal 12 workweeks of FMLA job-protected leave available for eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. The meaning of qualifying exigency is set forth in several categories, including financial and legal arrangements, rest and recuperation, short notice deployment, military events and related activities, childcare and school activities, counseling, post-deployment activities and other activities that are not set forth in the regulations, but agreed to by the employer and employee. These categories are truly broad. Qualifying Exigency Leave does not apply to families of servicemembers in the Regular Armed Forces. Notice must be provided to the employer as soon as practicable.

Qualifying exigencies include:

  • Issues arising from a covered military member’ short notice deployment (i.e. deployment on seven or less days of notice) for a period of seven days from the date of notification.
  • Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs, and informational briefings sponsored of promoted by the military, military service organizations, or the American Red Cross.
  • Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling or transferring a child in a new school or day care facility, and attending certain meetings at school or a day care facility if they are necessary due to circumstances arising from the active duty of the covered military member.
  • Making or updating financial and legal arrangements to address a covered military member’s absence.
  • Attending counseling provided by someone other than a health care provider for oneself, the covered military member, or t he child of a military member, the need for which arises from the active duty or call to active duty status of the covered military member.
  • Taking up to five days of leave to spend time with a covered military member who is on short term temporary, rest and recuperation leave during deployment.
  • Attending to certain post deployment activities, including attending arrival ceremonies, reintegration briefing and events, and other official ceremonies or programs sponsored by the military for period of 90 days following the termination of the covered military member’s active duty status, and addressing issues arising from the death of a covered military member and any event that the employee and employer agree is qualifying exigency.

Other

Employees are permitted to take FMLA leave to both care for a covered servicemember and another FMLA qualifying reason during single 12 month period. The regulations provide that the eligible employee is entitled to a combined total of 26 workweeks of military caregiver leave and leave for any other FMLA qualifying reason in this single 12 month period, provided that the employee may not take more than 12 workweeks of leave for any other FMLA qualifying reason during this period.

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