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Military Leave Under the Family & Medical Leave Act

Most employers are very familiar with the Family and Medical Leave Act’s (FMLA) requirement to provide up to 12 weeks of leave for an employee’s serious health condition or that of the employee’s child spouse or parent. However they frequently forget the provisions extended to Military servicemembers in certain circumstances.

The first type of leave granted for military servicemember leave under FMLA is for a “Qualifying Exigency”. According to the Department of Labor (DOL), “qualifying exigencies may arise when the employee’s spouse, son, daughter, or parent who is a member of the Armed Forces (including the National Guard and Reserves) and who is on covered active duty or has been notified of an impending call or order to covered active duty.”

The DOL goes further to identify nine categories of qualifying exigencies as follows:

  • Issues arising from the military member’s short notice deployment (i.e., deployment within seven or less days of notice). For that period, an employee may take qualifying exigency leave to address any issue that arises from the short-notice deployment.
  •  Attending military events and related activities, such as official ceremonies, programs, events and informational briefings, or certain family support or assistance programs.
  • Certain childcare and related activities because of the active duty deployment including arranging for alternative childcare, enrolling in or transferring a child to a new school or day care facility, etc.
  • Certain activities arising from the military member’s covered active duty related to care of the military member’s parent who is incapable of self-care, such as arranging for alternative care, providing care on a non-routine, urgent, immediate need basis, etc.
  • Making or updating financial and legal arrangements to address a military member’s absence while on covered active duty.
  • Attending counseling for the employee, the military member, or the child of the military member when the need for that counseling arises from the covered active duty of the military member and is provided by someone other than a health care provider.
  • Taking up to 15 calendar days of leave to spend time with a military member who is on short-term, temporary Rest and Recuperation leave during deployment.
  • Certain post-deployment activities within 90 days of the end of the military member’s covered active duty, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military, and addressing issues arising from the death of a military member, including attending the funeral.
  • Any other event that the employee and employer agree is a qualifying exigency.

The second type of military family leave is to Military Caregiver Leave. In this situation, the employee is permitted FMLA leave to care for a child, spouse, parent, or “next of kin” of a covered veteran with a serious illness or injury. The DOL further defines serious illness or injury as “… an injury or illness that was incurred by the covered veteran in the line of duty on active duty in the Armed Forces or that existed before the veteran’s active duty and was aggravated by service in the line of duty on active duty”.

Military Caregiver Leave departs from what most employers are accustomed to under regular FMLA in that it extends for up to 26 weeks and it covers “next of kin”. The DOL defines “next of kin” of a covered parent as

The nearest blood relative, other than the veteran’s spouse, parent, son, or daughter, in the following order of priority:

  1. a blood relative who has been designated in writing by the servicemember as the next of kin for FMLA purposes
  2. blood relative who has been granted legal custody of the servicemember
  3. brothers and sisters
  4. grandparents
  5. aunts and uncles
  6. first cousins

It’s important for employers to familiarize themselves with the Military Leave provisions of the FMLA. The Department of Labor provides comprehensive guidance in the following documents:


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EAF provides information about current developments in labor and employment law. This information is intended for educational purposes only and should not be considered legal advice. Questions requiring legal advice should be addressed to the attorney of your choice. EAF members may be able to obtain a legal interpretation through our FREE Legal Hotline.