FMLA: Caregiver Employee Leave

Sometimes, caregivers don't receive enough leave time from their employer and need additional time off in order to be present at healthcare appointments or to stay home to attend to their loved one. In these cases, the Family and Medical Leave Act under the Department of Labor affords caregivers the opportunity to take additional unpaid job protected leave from their place of employment, as needed. However, there are certain stipulations and requirements for the utilization of FMLA.

One major provision is called Military Caregiver Leave, which allows up to 26 work weeks of leave (in a single 12-month period) to be taken by an eligible caregiver to care for a seriously injured, ill, or wounded servicemember within the first five years of the injury or illness.

This section addresses how the Family and Medical Leave Act (FMLA) can provide certain benefits and protections to veterans and their caregivers. Learn how and when the FMLA applies to you and the specific types of rights and protections available. If you or your veteran do not work for a government agency or a private employer with 50 or more employees, the FMLA might not apply.

Enacted in 1993, the Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks a year of unpaid, job-protected leave for certain health-related situations. These include:

  • the adoption or birth of a child,
  • a serious health condition of the employee, and
  • a serious health condition of the employee’s immediate family member.

To be considered eligible, a person must work for a government agency or a private employer with at least 50 employees, have worked for the employer for at least one year, and have worked for more than 1,250 hours during the previous 12-month period.

An employer is not required to pay the employee during FMLA leave, but an eligible employee may use accrued paid leave time for FMLA leave. In addition, an employer is prohibited by the FMLA from interfering with an employee’s exercise of any right granted under the act. Employees who believe their FMLA rights have been violated may file a complaint with the Department of Labor or bring a lawsuit directly against their employers.

If you are provided group health insurance, you may continue the coverage while on FMLA leave under the same terms that would have applied while you were working. This extends to coverage for both you and your family, assuming your family was covered while you were working. You must, however, continue paying whatever share of the premiums you were obligated to pay while working. You and your employer can work out the terms under which you will pay these premiums. However, under whatever terms you are paying the premiums, your employer may terminate your coverage if you are more than 30 days late in paying, although your employer first must provide you written notice that payment has not been received and then wait at least 15 days before actually terminating coverage.

Continuation of any additional benefits other than group health insurance will depend entirely upon your employer’s own policies.

There are two types of FMLA leave specifically designed to support military families and caregivers. The first is qualifying exigency leave, which allows eligible employees to take up to 12 weeks of job-protected leave to cope with the difficulties of having a deployed family member. The second is military caregiver leave, which provides eligible employees with up to 26 weeks of job-protected leave to care for a covered servicemember with a serious injury or illness.

Qualifying exigency leave allows eligible employees to take up to 12 weeks of FMLA leave. In addition to the requirements to be considered eligible, the employee also must be the spouse, child, or parent of a servicemember currently on active duty or under a pending call or order to active duty. Qualified exigency leave is generally available to the family of all members of the Guard and Reserve as well as the regular armed forces. It only applies when the active duty service involves a deployment outside the U.S. The 12 weeks of FMLA leave may be taken as needed by the employee, including in increments measured by hours instead of days or weeks.

Qualifying exigency leave is intended to allow the family member to take leave to address short-term situations arising because of military service related to deployment. These can include leave to deal with the following:

  • Leave up to seven days to address issues arising from the notification of an impending call to active duty on short notice
  • Leave to attend military events and related activities such as ceremonies, programs, events, or information briefings related to active duty or a call to active duty
  • Leave to handle child care and school activities or financial and legal arrangements
  • Leave to obtain counseling related to active duty or the call to active duty provided by someone other than a health care provider
  • Leave up to 15 days during deployment for rest and recuperation
  • Leave for post-deployment activities, such as reintegration events. This extends up to 90 days after active duty terminates
  • Leave to deal with the death of a servicemember
  • Any other additional related activities as agreed to by employer

Military caregiver leave allows eligible employees to take up to 26 weeks of FMLA leave within a 12-month period. In addition to the requirements to be considered eligible, the employee must also be the spouse, child, parent, or next of kin of a covered servicemember, which is defined as one who is:

  • undergoing medical treatment, recuperation, or therapy; or
  • otherwise in outpatient status; or
  • otherwise on the temporary disability list for a serious injury or illness that was incurred in the line of duty and might render the servicemember medically unfit to perform the duties of his or her office, grade, rank, or rating.

Both types of military FMLA leave may be taken in a way that accommodates the need of the military family member or caregiver. You must give notice to your employer of the need for leave at least 30 days in advance, or at least as soon as is practical. You also must make reasonable efforts to schedule your leave at a time that does not disrupt the business operations of the employer. Your employer is allowed to ask for written proof of the need for leave.

  • Employers might ask the employee to obtain a certification completed by the servicemember’s health care provider. The Department of Labor has developed a new optional form (WH-385) for employees’ use in obtaining certification that meets military caregiver leave certification requirements. This optional form reflects certification requirements so as to permit the employee to furnish appropriate information to support his or her request for leave to care for a covered servicemember with a serious injury or illness. Please visit the Deparment of Labor website for more information on the FMLA process.
  • More details about the different types of leave available to military family members and caregivers can be obtained from the Department of Labor, which enforces the FMLA. Review the information on its website on the types of situations the FMLA covers; they go beyond military issues, and there might be more instances that apply to you. The Department of Labor has an FAQ document on military leave, and there is more detailed information available regarding how to take qualified exigency leave and military caregiver leave for the caregivers of both those currently in the military and those who are veterans.

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