Employment Law

Military Caregiver Leave

When I first heard the term “Military Caregiver Leave,” I thought it was leave for members of the military to care for family emergencies, but that isn’t it at all.  Military Caregiver Leave is an extension to the Family and Medical Leave Act, commonly known as FMLA. It authorizes family members of qualified veterans and active duty military personnel to take leave from their jobs to care for the military member or veteran who is injured or ill. To simplify this discussion, I will use the term “servicemember” to mean both active duty military, qualified reservists and qualified veterans.  The injury or illness must be serious enough for the servicemember to need a family member’s care for weeks or even months.

While Military Caregiver Leave is a type of FMLA offered exclusively to military families, the qualifications and application process make it more complex than ordinary FMLA. Military Caregiver Leave can be used only once per servicemember per injury or illness. The Regulation allows up to 26 weeks of leave from the family member’s job, but the 26 weeks must be used within one 12 month period.  As with FMLA, the leave is unpaid, although the employees (family members) may use sick time and vacation time to get paid for some of the time they are on Military Caregiver Leave. 

Covered Servicemembers

Not every servicemember who becomes ill or incurs an injury will trigger Caregiver Leave. FMLA Regulation § 825.112 defines a covered servicemember as:

“a current member of the Armed Forces, including a member 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, or a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness.  Covered veteran means an individual who was a member of the Armed Forces (including a member of the National Guard or Reserves), and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.”

Well, that’s clear as mud. If the servicemember is active duty military, active duty Reserves or National Guard and sustains a serious injury or illness in the line of duty, an employed family member can apply for Military Caregiver Leave.  For a veteran to qualify, he or she must have been discharged with a medical, honorable or general discharge within 5 years of the first day his family member begins FMLA leave.

While the injury or illness must be service related, FMLA may be granted if a pre-existing illness or injury is aggravated during active duty.  For example: John injured his back in a boating accident when he was 15.  He is now on active duty in the Navy. While working, he slipped and tumbled down some stairs, reinjured his back. John’s mother applied for and was granted Military Caregiver Leave to care for him while he recovers from back surgery. If a servicemember has a second serious illness or injury at a later time, his family would be entitled to another 26 weeks of FMLA.

Qualified Family Members and Covered Employers

Who can apply for Military Caregiver Leave?  It must be a family member who is employed by a covered employer. A covered employer is a company, school or public agency with 50 or more employees.  The company, school or agency must have employed at least 50 people for a minimum of 20 weeks in the prior year. If you work for Prudential or U-Haul or any other large company, you are eligible for FMLA. If you work for a school, a hospital, or a public agency, you will be eligible. However, if you work at the local barber shop, a family owned restaurant, or any mom and pop small business, you will not be eligible.

Family members qualified to take Military Caregiver Leave include the spouse, parent, adult child or next of kin. The Regulation defines next of kin as a blood relative in the following order of priority: (1) a blood relative who was granted legal custody of a disabled servicemember, (2) brothers and sisters, (3) grandparents, (4) aunts and uncles and, finally, (5)  first cousins.  Stepparents and stepchildren can qualify because the FMLA statute includes stepparents and stepchildren in its definition of parent and child. The whole priority system is moot if the servicemember has designated a blood relative as “next of kin” in writing for FMLA purposes. The servicemember’s written designation trumps all other considerations.

Jumping Through the Right Hoops to Get FMLA

There are procedures to follow and forms to complete. First, the employee must complete a “Medical Leave Request Form” and provide the request form and the “Medical Certification Form” to the employer. You will find the forms and instructions on the U.S. Department of Labor, Wages and Hour Division website.  Once the employee requesting leave completes his or her portion of the request form, it must be approved by the supervisor and possibly by a second level supervisor, depending on company policy. The employer reviews the health care provider’s analysis of the service member’s condition and may or may not require additional documentation. After the employer completes its section of the form, it returns the form to the family member. 

An employer will require that a FMLA request be supported by a certification completed by an authorized health care provider. In some cases, the employer may require evidence of the servicemember’s deployment. Employers are not permitted to require second or third opinions or recertification for Military Caregiver Leave if the original certification is completed by a health care provider affiliated with the military. That would include physicians at military hospitals, the VA or TRICARE.  However, the law does allow employers to request second or third opinions or recertification when the Certification Form is completed by a civilian doctor with no military affiliations.

Qualifying Exigency Leave

Qualifying Exigency Leave is a bit different from Military Caregiver Leave.  A covered employer must grant a family member employee up to 12 work weeks of unpaid, job-protected leave when the employee’s spouse, son, daughter or parent is on “covered active duty” or is called to active duty.  Covered active duty is defined as a servicemember being deployed to a foreign country or is deployed to service in international waters. A “qualifying exigency” would include situations like making child care arrangements for the deploying servicemember’s children; making financial or legal arrangements to care for the servicemember’s affairs while on deployment; attending certain military ceremonies; meeting a servicemember who is deployed to a combat zone for R&R; and traveling to the bedside of a seriously injured servicemember. The family member requesting leave will need to fill out a Certification of Qualifying Exigency for Military Family Leave Form and have it approved by the supervisor at work. The employer may require a copy of the servicemember’s orders. As with Military Caregiver Leave, the forms and instruction are on the U.S. Department of Labor website.

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