In 2008, the Family and Medical Leave Act (FMLA) was amended to allow time off for employees with family members in the military. These employees may use their regular FMLA leave to handle certain issues arising from a family member's call to active duty. The amendments also create a one-time, 26-week leave entitlement for employees who need time off to care for a family member who was seriously injured in the line of duty.
This article explains these leave rights. For more detailed information on military family leave, along with all the tools you need to manage any type of FMLA leave, see The Essential Guide to Family & Medical Leave, by Lisa Guerin and Deborah England (Nolo).
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. This new provision joins the existing list of qualifying reasons that allow an employee to take FMLA leave: for their own serious health condition, to care for a seriously ill family member, or to bond with a new child. This leave is part of the regular 12-week entitlement -- that is, the employee gets 12 weeks total per year for any qualifying reason, not an additional 12 weeks for issues relating to a family member's military service.
These rules differ from the usual rules for FMLA leave to care for family members. An employee may take qualified exigency leave if an adult child is called to active duty; other types of FMLA leave allow employees to take leave for a child only if the child is either under the age of 18 or is 18 or older and unable to care for him- or herself.
Qualifying exigency leave was originally available only relating to a call or order to active duty by members of the Reserve, the National Guard, and certain retired members of the Reserve and regular armed forces. In 2010, the law was expanded to cover family members of the regular armed forces on active duty status.
What's a Qualifying Exigency?
Qualifying exigency leave may be used for:
short-notice deployment (defined as notice of an impending call or order to active duty within seven days of the date of deployment)
military events and related activities, such as informational briefings, family assistance programs, or official ceremonies and events
childcare and school activities, including arranging alternative childcare, caring for children on an immediate, urgent basis, and attending school meetings
making financial and legal arrangements, such as executing powers of attorney, obtaining military identification cards, or preparing a will or trust
rest and recuperation (that is, to spend time with a military family member who is on short term rest and recuperation leave), and
post-deployment activities, including arrival ceremonies, reintegration events, and issues relating to the death of a military family member.
Other events arising out of a family member's service may qualify, as long as the employer and employee agree that it qualifies, and agree on the timing and length of leave to be taken.
The rules for leave differ slightly depending on the reason for leave. For example, a family member may take only five days of leave for each period of rest and recuperation, but may take up to seven days for short-term deployment.
Procedures for Taking and Granting Leave
Here are some of the procedural requirements for qualifying exigency leave:
- Intermittent leave. This type of leave may be taken intermittently or on a reduced schedule.
- Notice. Employers may require employees to give notice of the need for leave as soon as is practicable.
- Certification. The employer may require the employee to provide a copy of the family member's active duty orders or other documentation issued by the military indicating that the family member has been called to active duty. The employer may also require the employee to submit a statement that includes the type of exigency for which leave is requested (along with documentation); the date when the exigency begins; the start and end dates of the leave or, for intermittent leave, an estimate of the frequency and duration of the exigency; and contact information for any third party with whom the employee is meeting as part of the exigency (for example, a child's teacher).
- Paid leave. An employee may choose, or the employer may require an employee, to use applicable accrued paid leave during this type of FMLA leave.
Leave to Care for Injured or Ill Service Member
The law created an entirely new entitlement 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 Much Leave Is Available?
This entitlement doesn't renew every year, like other types of FMLA leave. Instead, it's available only once per family member and per injury. In other words, once an employee takes leave for a family member's injury, the employee may not take leave again for that family member's same injury. If the family member goes back to active duty and is injured again, however, the employee is entitled to another period of leave. And, if a different family member is injured, the employee is entitled to another period of leave. Even if the employee has the sad distinction of becoming entitled to a second period of leave, however, the employee can never take more than 26 weeks in a year, even if the second injury occurs during the same year as the first.
Procedures for Taking and Granting Leave
Here are some of the rules for this type of leave:
- Family members. In addition to spouses, children, and parents (the usual family members covered by the FMLA), "next of kin" are eligible for this type of leave. Next of kin means the nearest blood relative, other than a spouse, parent, or child, in the following order of priority: blood relatives who have been granted legal custody of the service member; siblings; grandparents; aunts and uncles; and first cousins. The service member may also designate someone in writing as next of kin.
- Serious injury or illness. This leave is available to care for a service member 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. To qualify as "serious," the service member's injury or illness must have been suffered or aggravated on active duty, and must be such that it may render the service member medically unfit to perform the duties of his or her office, grade, rank, or rating. This is entirely different from the existing FMLA definition of a "serious health condition."
- Veterans. In 2010, the law was amended to also cover family members of veterans (those who were in the military within the last five years) who are undergoing treatment, therapy, or recuperation for a qualifying illness or injury. This expansion is intended to allow leave to care for family members who are suffering from conditions that might manifest fully only after military service is over (such as post-traumatic stress disorder). The federal Department of Labor is expected to issue regulations explaining which types of illness or injuries qualify for this type of leave.
- Intermittent leave. Employees may take this type of leave intermittently or on a reduced schedule when medically necessary.
- Notice. If leave is needed for the service member's planned medical treatment, the employee must try to schedule such treatment so it doesn't unduly disrupt the employer's operations, subject to the recommendations of the service member's health care provider. For foreseeable leave, the employee must give 30 days' notice or as much notice as is practicable under the circumstances.
- Certification. An employer may require a certification from the service member's health care provider, including Department of Defense or Department of Veterans Affairs health care providers and private health care providers who are authorized by the Department of Defense. In lieu of this certification, an employer must accept an invitational travel order or authorization issued to any family member to join an injured or ill service member at his or her bedside.
- Paid leave. An employee may choose, or the employer may require an employee, to use applicable accrued paid leave to be paid for this otherwise unpaid FMLA leave.