FMLA Leave And The Military
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How The FMLA Works For Military Personnel And Families

In certain circumstances, federal law allows employees to take leave from their employment for an extended period of time to tend to family matters. The Family and Medical Leave Act, commonly referred to as the FMLA, allows employees to take unpaid time off without fear of losing their jobs (or being retaliated against) for many family and medical situations. The birth of a child is probably the most common situation in which the FMLA will touch people’s lives. But it also applies in instances of illness or to provide care to a seriously ill family member. What many people do not realize is that the FMLA also applies to military families in a number of different situations. The FMLA allows an eligible employee to take leave when a spouse, child or parent (and next of kin for care-giving duties) is an active or reserve member of the U.S. military. The FMLA allows up to a total of 12 weeks in a 12-month period for tending to “qualifying exigency” circumstances surrounding active or impending active duty of a National Guard or reserves service member and up to a total of 26 weeks in a 12-month period to provide care for a badly injured or ill family member hurt while on active duty. Another federal law, USERRA, provides additional reemployment and job protection rights for returning members of the armed services and first responders. Not every employee is permitted FMLA leave; certain eligibility requirements must be met. The employer has to be a covered employer with more than 50 employees, and the employee also has to meet certain certification requirements in response to notices from the employer.

Military Leave Under The FMLA

In 2009, President Obama signed into law the National Defense Authorization Act for fiscal year 2010. Incorporated into this law were provisions that broadened FMLA leave for exigency circumstances and caregiver leave for family of service members. The law provided important protections for workers in the armed services. It requires many corporations and other employers to repay service to our country by protecting the jobs for members of the armed services and their family caregivers. The FMLA, including for military leave, applies to most workers throughout the United States. According to the U.S. Wage and Hour Division, workers employed by larger private companies (those with a minimum of 50 employees, within 75 miles and for at least 20 weeks in the current or previous calendar year), school districts; and local, state and federal public agencies are covered by the FMLA. However, there are specific requirements that must be met before workers are eligible for FMLA leave. For most employees, the law allows a maximum of 12 weeks’ leave time for serious health conditions covered by the FMLA, but for spouses of returning service members up to 26 combined weeks of unpaid leave is now available in each 12-month period to care for a seriously injured or ill service member. Additionally, up to 12 combined weeks of unpaid leave can be taken in a 12-month period for “exigency leave” to tend to other matters relating to military service of the National Guard or reserves.

Exigency Leave

A person who has a child, parent or spouse in the National Guard or reserves on active duty or who has been notified that he or she will be going on active duty is able to take FMLA leave to tend to qualifying exigencies — family members of service members in the regular armed forces are not able to take FMLA leave under this provision. Circumstances that qualify for FMLA exigency leave, according to the WHD, include:

  • Short-notice deployment — Leave can be taken to attend to issues arising from notice of deployment that occurs within seven or fewer days before deployment.
  • Child care — Leave can be taken to arrange alternative child care, provide child care in an urgent situation, or enroll a child in a new school or day care, among other situations.
  • Financial and legal issues — Leave can be taken to take care of any financial or legal arrangements for a loved one’s absence.
  • Counseling — Leave can be taken for counseling needed as a result of a family member’s deployment.
  • Rest — Leave can be taken by a family member (up to five days) when an active-duty service member is home on rest and recuperation.
  • Military events — Leave can be taken to attend events like ceremonies and programs that relate to the active duty of a family member sponsored by the military or other support organizations.
  • Post-deployment — Leave can be taken to attend arrival ceremonies, official programs and reintegration briefings during the 90 days after a service member is terminated from active duty.

Caregiver Leave

Spouses, children, parents and next of kin are able to take FMLA leave to care for active-duty service members who are seriously injured or ill. The caregiver leave provisions of the FMLA apply to caregivers for any member of the regular armed forces, as well as members in the National Guard or reserves. This provision is unique in that it provides up to 26 weeks of unpaid leave for the caregiver for each qualifying injury. If a second injury later manifests itself, then an additional 26 weeks may be available to the caregiver, even in the same 12-month period. To be eligible, the service member must be “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” that was suffered while on active duty, according to the WHD. The caregiver provisions apply for taking care of those on a temporary disability retired list but not to those on a permanent disability classification. For all of the above, FMLA certification provisions apply, and it is essential that the employer get proper and timely responses in order to qualify. If the forms are not returned, or not filled out properly, caregivers may give up FMLA rights they are otherwise entitled to receive. On the other hand, if employers fail in their obligations to provide qualifying employees with the required notice, they could face liability under these FMLA provisions.

FMLA Violation Recourse

An employer is prohibited from taking adverse action, including firing or suspending benefits, when a person lawfully takes FMLA leave. Further, employers cannot retaliate against employees for filing complaints or lawsuits that allege their FMLA rights have been violated by their employers. Employees who suffer retaliation for exercising their FMLA rights may be entitled to lost wages, benefits and other compensation, or other monetary loss suffered, plus interest. Additionally, court costs and attorneys’ fees may also be awarded. The law requires proper notice from the employee, but creates responsibilities on the employer to properly notify employees of their rights when an issue arises.

We Will Help You Protect Your Rights

If a loved one is serving in the regular armed forces or in the National Guard or reserves, and you have questions about if and when you may be entitled to FMLA leave, speak with a knowledgeable lawyer at NachtLaw, P.C.. We provide legal services to clients throughout Michigan from our Ann Arbor, Birmingham and Traverse City offices.