Summary: Identify how to maintain workforce compliance with FMLA military caregiver leave. This covers non-exempt employees to take 26 work weeks of unpaid leave to care for an injured or ill service member or covered veteran.
By: Paul Kramer
Covered employees: United States employees who are a designated care giver for an injured or ill service member or covered veteran.
Action items: Review and revise policies, practices and management training to support compliance with FMLA military caregiver leave.
Table of contents
- Who is a covered service member for FMLA military caregiver leave?
- Which family members are covered by FMLA military caregiver leave?
- What is considered a serious injury or illness?
- What is a single 12-month leave period?
- May employers request certification for military caregiver leave?
- What if an employee alleges FMLA retaliation?
FMLA military caregiver leave permits an eligible employee who is the spouse, son, daughter, parent, or next of kin of a seriously ill or injured covered service member to take up to 26 work weeks of unpaid leave during a single 12-month period to care for the service member. Although this may not sound complicated, employers need to take a close look at the details of military caregiver leave to fully understand it and maintain workforce compliance.
Who is a covered service member for FMLA military caregiver leave?
A covered service member is a current service member or covered veteran:
- Current service member: A member of the Armed Forces, including the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise an outpatient, or is on the temporary disability retired list, for a serious injury or illness.
- Covered veteran: Is a veteran of the Armed Forces (including the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness, who was discharged from the military within five years of the employee taking leave to care for the veteran.
Which family members are covered by FMLA military caregiver leave?
To use military caregiver leave, the employee must be the spouse, parent, son or daughter (of any age), or next of kin of the seriously ill or injured servicemember.
“Next of kin” means the servicemember’s nearest blood relative, other than their spouse, parent, son, or daughter, in the order of priority set forth in section 825.127 (d)(3) of the Code of Federal Regulations. Each family member sharing the nearest level of family relationship with the service member is considered their next of kin. Nevertheless, when a service member designates a blood relative in writing as next of kin for military caregiver leave, that person is solely regarded as the service member’s next of kin.
What is considered a serious injury or illness?
A serious injury or illness for a current member of the Armed Forces, including National Guard or Reserves, means an injury or illness incurred in the line of active duty that may render the service member medically unfit to perform the duties of their office, grade, rank, or rating. It may also arise by aggravating a pre-existing condition in the line of active duty.
A veteran’s serious injury or illness is an injury or illness incurred in the line of duty when the veteran was on active duty in the Armed Forces, including aggravating a condition existing before the beginning of the service member’s active duty. The injury or illness may become apparent during active duty or after the service member is discharged from duty.
What is a single 12-month leave period?
The single 12-month leave period for FMLA military caregiver leave starts the first day the employee takes leave and ends 12 months later, regardless of the 12-month period used by the employer for other forms of FMLA leave (e.g. calendar year, any fixed 12-month period, or rolling 12-month period). Employees are limited to a combined total of 26 work weeks of leave for any FMLA reason during the single 12-month leave period, but only 12 of the 26 workweeks may be an FMLA-qualifying reason other than caring for a service member.
May employers request certification for military caregiver leave?
An employer may request military caregiver leave certification. The easiest way to do so is to use the U.S. Department of Labor’s optional military caregiver leave certification forms found on their website (forms WH-385 and WH-385-V). Employers may also draft their own certifications, but no additional information than what is required on the Department of Labor’s optional forms may be requested.
What if an employee alleges FMLA retaliation?
Employers are prohibited from taking any adverse action against an employee for lawfully using FMLA military caregiver leave or for filing complaints alleging an FMLA violation. Employees experiencing retaliation may recover lost wages and benefits, or other monetary losses. Attorneys’ fees and court costs may also be granted.
Employees need not specifically mention the type of FMLA when requesting military caregiver leave to be entitled to it. Once the employee provides sufficient information to their employer that they may qualify for military caregiver leave, the employer must provide appropriate documentation of employee rights and eligibility as they do with other forms of FMLA leave. Failing to do so would constitute interfering, restraining or denying the employee’s exercise of FMLA rights and possibly lead to liability.
Employers should seek legal counsel if they need help developing compliant leave policies and practices or when trying to minimize the risk of violations and lawsuits.
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