The Family and Medical Leave Act or FMLA was amended in 2008 so that employees who have military family members could take unpaid time off from their jobs. The employees can take FMLA leave to deal with issues that arise from a family member being called for active duty. Family members are also able to take up to 26 weeks of leave to care for a military family member who has suffered serious injuries while on active duty. The attorneys at Swartz Swidler can help people who need to take FMLA leave to care for the needs of their military family members.
FMLA leave for a family member’s active duty
Employees can take FMLA leave when a family member is called for active duty to take care of associated issues. Active duty leave is a part of the regular 12-week leave entitlement. This means it is counted towards the 12 weeks of annual leave that a worker can take rather than being in addition to medical leave.
Workers can take exigency leave if their adult child is called for active duty. Other types of FMLA leave only allow workers to take leave to care for children if the children are under the age of 18 or are over 18 but unable to care for themselves.
What is a qualifying exigency?
Employees can use exigency leave for the following situations:
- Deployment notice within seven days of when the deployment will begin
- Military activities and events
- Childcare and school arrangements
- Legal and financial arrangements
- Will and estate planning
- Recuperation and rest
- Post-deployment activities
The rules for taking the leave depend on the reason why it is needed. For example, employees are only allowed to take five days for rest and recuperation. However, they can take seven days when their loved one has received a notice for a short-term deployment.
What are the procedures for taking and granting leave?
Employees are allowed to take intermittent leave or to take leave with a reduced schedule. Employers can require their employees to provide notice of their need to take leave as soon as possible. Employers can also require their employees to give them copies of their family members’ orders for active duty and to submit a statement about the reason for needing to take exigency leave. The statement should include the date when the exigency will begin and the start and end dates for the leave. It should also include contact information for any third party the employee will be meeting with. Employers can require their employees to use their accrued paid leave while they take exigency leave.
Taking leave to care for an ill or injured military member
Employees can take up to 26 weeks of leave during a year to care for a family member who has been seriously injured or has become seriously ill because of serving on active duty. Unlike other types of FMLA leave, this type of leave is only available one time per injury and family member. This means that an employee cannot take a second 26-week leave to care for the family member’s same injury. If the family member is subsequently injured again on another deployment, the employee can take another period of leave.
Procedures for taking and granting leave to care for an injured military member
Employees may take leave to care for an injured military service member if they are the spouse, child, parent, or next of kin of the military member. The next of kin is the closest blood relative in a specific order of priority. Blood relatives who have been given legal custody of the military member have the first priority. Following that, the priority goes in the following order:
- First cousins
The military member can also choose someone as his or her next of kin in writing.
The injury or illness must be one that is serious. The service member can be recuperating from an injury or undergoing treatment or therapy. He or she can also be on an outpatient status or is on a temporary disability list for his or her serious condition. To be considered to be serious, the illness or injury must have occurred while the person was on active duty and must leave the person medically unfit to perform his or her military duties.
The law was amended in 2010 to cover the family members of veterans who served in the military within the past five years who are undergoing treatment for their service-related injuries or illnesses. This rule is meant to allow employees to take leave to care for family members whose conditions manifested after their service was completed such as post-traumatic stress disorder.
For intermittent leave, employees may take leave intermittently or work on a reduced schedule when it is medically necessary. For example, the employee might take intermittent leave to take the military member to his or her therapy or medical appointments.
If the employee needs to take leave for the military member’s planned medical appointments, the employee is supposed to try to schedule the appointments so they do not cause an undue disruption to the business. If the leave is foreseeable, the employee is supposed to either provide 30 days notice or as much notice as is possible.
Employees are allowed to ask for a certification from the medical provider of the military member. The employer may also ask an employee to submit a copy of a travel order or an authorization that he or she has been issued to join the ill or injured military member. Finally, the employee can choose to use his or her paid time off for a portion of the FMLA leave, or the employer can require the employee to do so.
Contact Swartz Swidler
If you need to take FMLA leave for an exigency or to care for your seriously ill or injured family member, you have the right to do so as long as you work for a covered employer and are a qualifying employee. If your employer denies your request for this type of leave, contact Swartz Swidler for help by filling out our online contact form.