The Family and Medical Leave Act (FMLA) provides special rights to employees with family members in the U.S. National Guard, Reserves, and Regular Armed Forces. In particular, the FMLA provides the following two types of military family leave:
Employees may take FMLA leave for "any qualifying exigency" arising out of a family member's active duty or call to active duty. 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.
Covered family member. Qualifying exigency leave may be taken only for the employee’s spouse, parent, or child who is a member of the military.
What counts as a qualifying exigency. The law specifies eight qualifying exigencies for which an employee may take leave, if necessary due to a military family member’s call to active duty:
Employees may also take leave for other activities relating to the family member’s active duty if the employer agrees.
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:
The law also provides a separate leave entitlement for employees 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 for these purposes. Up to 12 of those weeks may be used for any other FMLA qualifying reason. For example, an employee may take three weeks of leave when a family military member is on R&R leave and 23 weeks of military caregiver leave if the military member is seriously injured in the line of duty.
How often can an employee take this leave? This leave provision is a “per injury, per service member” entitlement. In other words, this is a one-time entitlement for a particular family member and a particular injury. The employee may take additional leave in the future 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.
Covered service members. A covered service member includes current military members and veterans who have incurred or aggravated a serious illness or injury in the line of active duty. Veterans must have been released from duty under conditions other than dishonorable within the five-year period prior to the employee’s first day of leave.
Qualifying 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 or a blood relative designated by the service member in writing.
Qualifying illness or injury. The illness or injury must stem from active duty and render the service member medically unfit to perform the duties of his or her office, grade, rank, or rating. It includes serious injuries or illnesses sustained while on active duty, as well as the aggravation of a pre-existing injury or illness in the line of active duty. 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).