Print

As military families, things might happen that may complicate the balance between civilian and military life. Taking care for an injured service member, arranging for childcare while a spouse is deployed to a different country, or attending arrival ceremonies for when a service member returns home are some examples of unexpected military commitments families may need to handle.  

 The Military Family Leave provisions included in the FMLA considers the unexpected, specific needs of military families.  

How does the Military Family Leave help my military family? 

There are two types of FMLA leave specifically designed to support military families: 

  1. Qualifying Exigency Leave 

Allows eligible employees to take up to 12 weeks time off to prepare for an upcoming deployment or for other needs like the return of a service member. 

  1. Military Caregiver Leave 

Allows eligible employees to take up to 26 weeks of time to care for a covered service member or veteran with a serious injury or illness.  

Who can use the Military Family Leave? 

To be eligible for FMLA Military Family Leave, the employee needs to work for a covered employer. 

Employers with at least 50 employees are considered covered employers. Employers with less than 50 employees are not covered by FMLA. Local and federal government agencies and elementary, middle, and high schools are covered by the FMLA even if they have less than 50 employees.  

Employees who work for a covered employer must also: 

The 12 months of employment do not have to be in a row.  If the employee has not worked for 7 or more years was due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA). 

What is Qualifying Exigency Leave? 

When a relative of a service member has been told of an upcoming deployment, and they are eligible with a covered employer, they may qualify for exigency leave. By qualifying, exigency leave allows the relative to take up to 12 weeks of FMLA leave for certain exigencies. Examples may be to set arrangements for day care for the service member’s child or to attend deployment ceremonies.  

Events like the deployment of a service member, can place a lot of stress and uncertainty on military families. Many of these changes require a lot of time and attention. Even though some of these things do not have anything to do with an illness or injury, family members may need time away from their job to take care of these issues. This is when Qualifying Exigency Leave is used. 

Who can take Qualifying Exigency Leave? 

Covered employees who want to take qualifying exigency leave must be the service member’s spouse, parent, or child. 

Parent: 

For FMLA leave purposes, a parent is the service member’s biological, adoptive, step, or foster parent, or any person who stood In Loco Parentis. A parent “in law” does not qualify for exigency leave.  

Child: 

For FMLA leave purposes, a child is the service member’s biological, adopted, foster child, stepchild, legal ward, or a child that for whom the service members stood in loco parentis. There are no age limitations for any of the definitions of a child. 

What does In Loco Parentis mean? 

Ann adult stands in loco parentis if they provides day-to-day care or financial support for a child. A person who is not biologically related to a child may stand or have stood in loco parentis for purposes of FMLA.  

For example, a neighbor may exercise their FMLA rights to take Qualifying Exigency Leave if they took on the role of raising their neighbor’s child, who later became a service member. 

What is considered Covered Active Duty? 

Once it is determined that a relative works at a covered employer, next it needs to be determined if the service member is on covered active duty or on call to covered duty status.  

Covered Active Duty means: 

For service members in the Armed Forces, this means being deployed overseas.  

For members of the Reserves and National Guard, this means deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including international waters.  

What situations could be considered for Qualifying Exigency Leave?  

For members who are on covered duty, their relative may be able to take a qualifying exigency leave for the following qualifying exigencies: 

Short-Notice Deployment: 

Financial and Legal Arrangements: 

Counseling: 

Military Events and Related Activities: 

Rest and Recuperation:  

Childcare and School Activities:  

The relative acting on behalf of the service member does not have to be related to the service member’s child. The expectations are that (1) the service member is a spouse, parent, or child of the acting relative, and (2) the child is related to the service member. 

Post-Deployment Activities: 

Additional Activities: 

The relative acting on behalf of the service member does not have to be related to the service member’s parent. The expectations are that (1) the service member is a spouse, parent, or child of the acting relative, and (2) the parent is related to the service member. 

What are the certification requirements for Qualifying Exigency Leave?  

Employees that request leave for a qualifying exigency may be have to give their employer:  

  1. A copy of the service member’s active-duty orders, or other official military documentation, which shows the service member is on active duty or called to active duty status. 
  1. A statement or description of the appropriate facts regarding the qualifying exigency: 
  1. An approximate date of when the leave began or when it will begin and an estimate of how long and often any additional leave may occur, 
  1. Contact information of the individual or entity the covered employee is meeting with: 

How is FMLA Qualifying Exigency Leave requested from my employer? 

  1. Notify the covered employer as soon as possible, preferably 30 days in advance. 
  1. The employer has 5 business days to notify whether the employee is eligible for FMLA. 
  1. The employer should provide the covered employee with FMLA rights & responsibilities and may request certification documentation. 
  1. Provide enough information to the employer to certify the need for leave within 15 calendar days. 
  1. The employer will notify the covered employee whether leave has been designated as FMLA within 5 business days.  

It is important to also understand the general leave policy of the employer. There are instances where the employee must comply with both the FMLA regulations and the employer’s leave policy. 

Will I continue to get paid under Qualifying Exigency Leave?  

FMLA leave is unpaid. However, employees may use any accumulated sick time, vacation time, or personal time saved up so that the employee may continue to get paid. It may be possible that an employee does not want to use any of their accumulated paid time-off hours/days, but their employer may require them to use it during FMLA leave. 

Will I lose my employer health insurance while I am on Qualifying Exigency Leave? 

While on FMLA leave, the employer must continue the health insurance of the employee as if they had never left. Employees may be required to continue to make any normal employee contributions while on Military Caregiver Leave. 

What happens when I return from Qualifying Exigency Leave? 

FMLA requires that when an employee returns from leave, they are to receive the same job they left, or one that is closely similar. If a new position is assigned, the new position needs to: 

Employees who do not return before their FMLA leave expires, the employer is no longer required to restore the employee’s position. 

How do I file a complaint?  

FMLA is administered and enforced by the U.S. Department of Labor’s Wage and Hour Division (WHD). 

Immediately contact the WHD if an employer violated FMLA rights.  

Employees may call the WHD at 1-866-487-9243 or visit their complaint page. 

The information below is useful for filing a complaint: