Military Family Leave Under Federal Law
If a family member is a veteran, you should be aware that you may have rights under the Family and Medical Leave Act in some situations arising from your family member’s service. The FMLA allows covered employees to take up to 12 weeks of unpaid leave in a year to handle certain issues related to a family member’s service on active duty. Also, the FMLA allows covered employees to take up to 26 weeks of unpaid leave in a year to help a family member who was on active duty when they suffered a serious injury or illness.
Leave Based on Qualifying Exigencies Caused by Active Duty
When a spouse, parent, or child is called to active duty or serves on active duty, you may have certain essential matters to address. The law divides these “qualifying exigencies” into eight categories. These include attending military events and ceremonies, receiving counseling, updating financial and legal documents, arranging for child care and schooling for the servicemember’s child, and arranging for care for the servicemember’s parent if they are dependent on the servicemember and unable to care for themselves. Another category covers ceremonies and events after a family member returns from active duty, as well as matters related to the death of a family member while they were on active duty.
Two of the eight categories involve specific periods of leave. If a family member is called to active duty within seven or fewer days of their deployment, an employee has a right to seven calendar days of leave to handle related issues. Also, if a family member receives rest and recuperation leave during their deployment, an employee has a right to 15 days of leave to spend with the servicemember.
The servicemember must be a spouse, parent, or child of the employee to trigger the right to this leave. The employee can receive up to 12 weeks of this leave, but these are not separate from the 12 weeks generally provided under the FMLA. In other words, leave taken under this provision will count toward the overall limit of 12 weeks in any given year. The employee does not need to take all 12 weeks consecutively. The employer may require notice when possible and may ask for documentation of the basis for the leave. The employer and the employee also can make their own arrangements for leave, such as unpaid leave for reasons not covered by the FMLA or paid leave for reasons covered by the FMLA.
Leave Based on Caring for a Servicemember
The requirements for this leave are broader. The servicemember may be not only a spouse, child, or parent of the employee but also anyone who may be considered their next of kin. This can be the servicemember’s nearest blood relative or any blood relative whom they name as their next of kin in writing. To be eligible, the veteran must not have received a dishonorable discharge and must have left the service within the last five years.
The illness or injury must be serious, but it may be a condition that was aggravated during active duty, rather than a new condition. In either situation, the illness or injury must make the veteran unfit to perform their military duties, as defined by their station in the military. Often, an employee will take this leave when a veteran is on the temporary disability retired list or is receiving medical treatment, therapy, or outpatient care.
This leave does not need to be taken as 26 consecutive weeks. An employer may require notice in advance and documentation of the reason for the leave. The employer and the employee can agree that the employee will use paid vacation time instead of unpaid leave for some or all of this time. It is important to be aware that this is a one-time entitlement for each servicemember. You cannot take this leave again for the same person and the same injury, although you can take it again if the same family member suffers a different injury.
