To be eligible for Military Family Leave, the caregiver needs to work for a covered employer. Employers with at least 50 employees are covered employers, unless they are:

• Government agencies including local, state, and federal employees; and  
• Public and private elementary, middle, and high school employees.  

Those that work for a covered employer must also: 

• Have worked at the same place for at least 12 months, 
• Have worked at least 1,250 hours in the 12 months before taking leave (approximately 27 hours a week), and 
• Worked at a place where the employer has at least 50 employees within 75 miles.  

The 12 months of employment do not have to be in a row.

Example: The employee worked as a teacher from August to May, meeting their 1,250-hour commitment.  

If the employee stopped working for more than 7 years, then their previous work history is not factored in. Unless the break was because of service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA).  

When a service member has an illness or injury that makes them medically unable to do the duties of their office, grade, rank, or rating it is considered a serious injury or illness.

An injury or an illness that existed before the service member’s active duty and that has become worse during service is also considered a serious injury or illness.

To be eligible for Military Caregiver leave, the caregiver(s) must be a spouse, parent, child, or relative (“next of kin”) of the covered service member.

A person stands in loco parentis when they are not a parent of the child but take care of the child like a parent. In loco parentis, biological parents do not lose their right to custody of the child. For FMLA, a person does not have to be related to a child to stand or have stood in loco parentis.

For example, an aunt who raised her niece may exercise her FMLA rights to take military caregiver leave if the niece is a covered service member. A different example may be if the service member’s biological parent co-parented with a same-sex partner, the co-parent may take military caregiver leave.

Caregivers who are approved for Military Caregiver Leave have 12-months to care for the covered service member or veteran with a serious injury or illness. The 12-months begin the first day the caregiver takes leave and ends after 12 months. Their employer does not get to decide when the 12-months begins or ends.  

Caregivers are given 26 weeks of leave for any FMLA reason during the single 12-month period.

Caregivers may take 26 weeks of Military Caregiver Leave in a 12-month period more than once, if more than one of the following apply:

• They care for a covered service member’s serious injury or illness,
• When the same service member becomes a veteran, if they are still having problems with the same injury or illness,
• If the same service member has a different serious injury or illness from a single incident, and/or
• The caregiver takes care of more than one service member at a time.

An employer may ask the employee requesting Military Caregiver Leave to give them a WH-35 certification, signed by a doctor. The form requires:

Other common documents for certification are a copy of the VARSD rating determination or the enrollment notice from the VA’s Program for Comprehensive Assistance for Family Caregivers.

1. Notify the employer as soon as possible (preferably 30 days in advance). 
2. The employer has 5 business days to tell the employee if they are eligible for FMLA. 
3. The employer provides the employee with FMLA rights and responsibilities and may request certification documentation. 
4. With at least 15 days before leave starts, give a written, informational, statement to the employer to certify the need for leave. 
5. 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 to both the FMLA regulations and the employer’s leave policy.

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: Involve similar duties, responsibilities, and status, 

• Include the same general level of skill, effort, responsibility, and authority, 
• Provide identical pay, including identical premium pay, overtime, and bonus opportunities, 
• Offer the same general work schedule, and  
• Be at the same or nearby location.  

The employer does not have to hold an employee’s job if they do not return to their job before their FMLA leave expires.