The Family and Medical Leave Act (FMLA) provides special rights to employees with family members in the military to take family leave. In particular, if an employee's family member is called to active military duty or is injured during military duty, federal law allows the employee to take time off from work to handle issues relating to the family member's service or to care for the injured service member.
A 2008 defense reauthorization bill gives military family members the right to take time off from their jobs. This law adds two important provisions to the federal FMLA:
- Covered employees may take up to 12 weeks of leave per year to deal with certain issues (called "qualifying exigencies") relating to a family member's active duty or call to active duty.
- Covered employees may take up to 26 weeks of leave in a single year to care for a family member who is seriously ill or injured while on active military duty.
Leave for Active Duty of a Family Member
Employees may take FMLA leave for "any qualifying exigency" arising out of a family member's active duty or call to active duty. (For information on FMLA leave generally, read Nolo's article Taking Family and Medical Leave.) This provision joins the existing list of qualifying reasons for which you can take FMLA leave: for your own serious health condition, to care for a seriously ill family member, or to bond with a new child.
You get 12 weeks total. This leave is part of the regular 12-week entitlement available under the FMLA -- that is, you get 12 weeks total per year for any qualifying reason, not an additional 12 weeks for issues relating to a family member's military service.
What counts as a qualifying exigency. The law specifies seven qualifying exigencies for which an employee may take leave (employees may also take leave for other activities, if the employer agrees):
- Short-notice deployment. The employee may take up to seven calendar days of leave to address issues arising from a family member's call to duty within seven days or fewer of deployment.
- Military events and related activities. The employee may take leave to attend military programs, ceremonies, and events, to attend family support and assistance programs, and so on.
- Child care and school activities. The employee may take time off to arrange alternative child care, enroll a child in a new school, and deal with other logistics relating to the family member's imminent departure.
- Financial and legal arrangements. The employee may take time off to help make or update a will, power of attorney, or bank account transfer, for example.
- Counseling. The employee may take leave to attend counseling, including for a family member or family member's child.
- Rest and recuperation. The employee may take up to five days of leave to spend with a family member who is on short-term, temporary R&R leave during deployment.
- Post-deployment activities. The employee may take time off to attend briefings, ceremonies, and events relating to a family member's return from service, or to address issues arising from the death of a family member on active duty.
Many regular FMLA rules apply. Some of the rules that apply to regular FMLA leave will also apply to leave for a family member's active service. For example:
- This leave may be taken intermittently or on a reduced schedule; you don't have to take all 12 weeks at once.
- Employers may require notice in advance, if the need for leave is foreseeable.
- Employees can substitute, or employers can require them to substitute, applicable accrued paid leave during this type of FMLA leave.
- Employers will be able to require a certification: documentation of the family member's active duty.
Leave to Care for Injured or Ill Service Member
The law also creates an entirely new right for family members who need to care for a seriously ill or injured service member. These employees can take up to 26 weeks of leave in a year (that's 26 weeks total, not 26 weeks plus 12 weeks of FMLA leave for other reasons).
How often can an employee take this leave? The law says that this leave "shall only be available during a single 12-month period." The Department of Labor has interpreted this to mean that this leave provision is per injury, per service member. In other words, the employee may take additional leave only if a different family member is injured while on active duty or the same family member suffers a new injury while on active duty. Otherwise, this is a one-time-only entitlement, even if the same family member needs care on an ongoing basis.
Covered family members. Covered family members include not just the spouses, children, and parents covered by the FMLA, but also "next of kin," defined as the service member's nearest blood relative.
Qualifying illness or injury. This type of leave allows family members to take time off to care for a service member who is seriously ill or injured. The illness or injury must stem from active duty, and must render the service member medically unfit to perform the duties of his or her office, grade, rank, or rating. Employees may take leave to care for a family member who is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is otherwise on the temporary disability retired list for a serious injury or illness resulting from active duty.
Other rules applying to this leave. As is true of most other types of FMLA leave, family members may take this leave on a reduced schedule or intermittently, if that's medically necessary. Employers may require advance notice, if possible, and certification from the service member's health care provider. And the employee may choose -- or the employer may require the employee -- to use applicable accrued paid leave during this time off.
For more information about these rights, check out the Department of Labor's FMLA materials, at www.dol.gov/whd/fmla/index.htm.
To learn more about the FMLA and other rights that protect you in the workplace, get Your Rights in the Workplace, by Barbara Kate Repa (Nolo).