MILITARY FAMILY LEAVE - DOL

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The Employee’s Guide toMILITARY FAMILY LEAVEUnder the Family and Medical Leave ActWAGE AND HOUR DIVISIONUNITED STATES DEPARTMENT OF LABOR

Please reference “The Employee’s Guide to theFamily and Medical Leave Act” for generalinformation about taking FMLA leave.

An Introduction to Military Family Leaveunder the Family and Medical Leave ActMilitary families can fnd themselves facing great challenges. Caring for an injuredservicemember, arranging for alternative childcare when a spouse is deployed to aforeign country, or attending arrival ceremonies when a loved one returns from adeployment may present family members with difcult decisions about time spentat work versus with family.The Family and Medical Leave Act (FMLA) may be able to help. Since 1993, the FMLAhas provided unpaid, job-protected leave for those living with a serious healthcondition, or caring for a family member with a serious health condition.The Military Family Leave provisions, frst added to the FMLA in 2008, afordFMLA protections specific to the needs of military families.This guide provides you a simple overview of how the FMLA may beneft militaryfamilies. In your time of need, sometimes you just need time.This Guide Will Explain: Who Can Use Military Family Leave? What are the FMLA Military Family Leave Entitlements? Leave Related to the Deployment of a Military Member(Qualifying Exigency Leave) Leave Related to a Seriously Injured or Ill Servicemember or Veteran(Military Caregiver Leave) General FMLA Rights and Responsibilities How to File a Complaint Web Site Resources

Who Can Use Military Family Leave?In order to take FMLA leave, you must frst work for a covered employer. Generally,private employers with at least 50 employees are covered by the law. Privateemployers with fewer than 50 employees are not covered by the FMLA, butmay be covered by state family and medical leave laws. Government agencies(including local, state and federal employers), and elementary and secondaryschools are covered by the FMLA, regardless of the number of employees.If you work for a covered employer, you need to meet additional criteria to beeligible to take FMLA leave. You must: Have worked for your employer for at least 12 months; Have at least 1250 hours of service with your employer inthe 12 months before you take leave*; and Work at a location where your employer has at least 50employees within 75 miles of your worksite.* Special rules apply to airline fight crew employees.You work for an employer who has 50 or more employeesORYou work for a public agency or elementary or secondary schoolNOYESSTOPYour employer is not covered bythe FMLA and does not have toofer FMLA leaveYour employer is covered by the FMLAANDYou have worked for your employerfor at least 12 monthsANDYou have at least 1250 hours ofservice in the last 12 monthsSTOPYou are not eligible for FMLA leaveANDNOYour employer has 50 or more employeeswithin 75 miles of your job siteYESYou are eligible for FMLA leave2 The Employee’s Guide to Military Family Leave

An Introduction to the Military FamilyLeave ProvisionsQUALIFYING EXIGENCY LEAVEWhen a family member is deployed to a foreign country with the ArmedForces, your life can change very quickly. Many of these changes canrequire your prompt attention. Even though no one is ill or injured, youmay need time away from work to address these issues.If your spouse, parent, son or daughter is a military member who isdeployed or has been notifed of an impending deployment to a foreigncountry, and you work for a covered employer and are an eligibleemployee, you may be entitled to qualifying exigency leave. Qualifyingexigency leave allows you to take up to a total of 12 workweeks ofFMLA leave for qualifying exigencies, such as making diferent day carearrangements for the military member’s children or attending ofcialmilitary ceremonies as your family member prepares to deploy. Seepage 4 for more information on qualifying exigency leave under the FMLA.MILITARY CAREGIVER LEAVEWhen faced with caring for an injured or seriously ill servicememberor veteran, the FMLA may be able to help ease the burden of worryingabout your job during an already troubling time.If you are the spouse, parent, son, daughter, or next-of-kin of a coveredservicemember, you work for a covered employer, and are an eligibleemployee, you may be entitled to military caregiver leave. Militarycaregiver leave allows you to take up to a total of 26 workweeks of unpaidleave during a single 12-month period to take care of your militaryrelative if he or she has a qualifying serious injury or illness. See page 10for more information on military caregiver leave under the FMLA.The Employee’s Guide to Military Family Leave3

Qualifying Exigency LeaveWho can take Qualifying Exigency Leave?To take qualifying exigency leave, the military member must be your spouse,parent, son or daughter.Military MemberYour spouseYou(Eligible Employee)Your parentYour son or daughter ParentParent means a biological, adoptive, step or foster father or mother, orany other individual who stood in loco parentis to you when you were a child.This term does not include parents “in law.” Son or daughterFor qualifying exigency leave, son or daughter means your biological,adopted, or foster child, a stepchild, a legal ward, or a child for whom youstood in loco parentis, and who is of any age.In Loco ParentisA person stands in loco parentis if that person provides day-to-day careor financial support for a child. A person who has no biological orlegal relationship with a child may nonetheless stand or have stood inloco parentis to the child for purposes of FMLA leave. (See Administrator’sInterpretation No. 2010-3 and Fact Sheets 28B and 28C).For example, if an employee stood in loco parentis to a military memberwhen that military member was a child, the employee may exercisehis or her FMLA rights to take qualifying exigency leave for exigenciesarising out of that military member’s deployment to a foreign country.4 The Employee’s Guide to Military Family Leave

Covered Active DutyOnce you have determined that you are an eligible employee, you mustdetermine whether your spouse, parent or child who is serving in the militaryis on “covered active duty” or call to “covered active duty” status (or has beennotifed of an impending call or order to “covered active duty”).“Covered Active Duty” means:For members of the regular Armed Forces, duty during deployment of themember with the Armed Forces to a foreign country.For members of the reserve components of the Armed Forces (members of theNational Guard and Reserves), duty during deployment of the member with theArmed Forces to a foreign country under a call or order to active duty in support ofa contingency operation.Deployment to a foreign country means deployment to areas outside of theUnited States, the District of Columbia, or any Territory or possession of the UnitedStates, including international waters.Qualifying Exigency Leave Taken for a Military MemberSTEP 1You must work for a covered employer AND you must be an eligible employeePlease see pg. 2NOYESSTEP 2The military member must be on“covered active duty”NOT ON COVEREDACTIVE DUTYCOVERED ACTIVE DUTYSTEP 3The military member must be yourspouse, parent, son or daughterSTOPYou are not ableto take FMLA leavefor a qualifyingexigencyNOT YOURSPOUSE, PARENTOR CHILDYOUR SPOUSE, PARENT OR CHILDSTEP 4You may take FMLA leave for a qualifying exigencyPlease see pgs. 6-8The Employee’s Guide to Military Family Leave5

Qualifying Exigency LeaveIf your military relative is on covered active duty, you may be ableto take FMLA leave for the following qualifying exigencies: To address any issues arising from the military member’s short-noticedeployment (i.e., deployment within seven or less days of notice). You maytake leave for up to seven calendar days, beginning on the day the militarymember receives notice of deployment, to attend to any issue arising fromthe short-notice deployment. To make or update fnancial and legal arrangements arising from themilitary member’s covered active duty. This could include preparing andexecuting fnancial and healthcare powers of attorney, enrolling in theDefense Enrollment Eligibility Reporting System (DEERS), obtaining militaryidentifcation cards, or acting as the military member’s representative inarranging for military service benefts. To attend counseling for yourself, the military member, or the child of themilitary member, when the need for that counseling arises from themilitary member’s covered active duty and is provided by someone otherthan a health care provider. To attend military events and related activities. These could include ofcialmilitary ceremonies, military programs, family support programs, and/orinformational briefngs sponsored or promoted by the military or militaryservice organizations that are related to the military member’s coveredactive duty. To spend up to ffteen calendar days with a military member who is onRest and Recuperation leave during covered active duty. (Note: You mayonly use this leave during the military member’s R & R leave.)6 The Employee’s Guide to Military Family Leave

To address certain childcare and related activities concerning the militarymember’s child that arise from the military member’s covered active duty.These could include arranging for alternative childcare; providing childcareon a non-routine, urgent, immediate need basis; enrolling in or transferring achild to a new school or day care facility; and attending certain meetings at aschool or a day care facility. This provision allows for the arrangement ofalternative childcare. It does not allow you to take leave for routine childcare,such as to become the primary caregiver while the military member is oncovered active duty.Note: You do not need to be related to the military member’s child. But, (1) themilitary member must be your spouse, parent or child, and (2) the child forwhom you are taking leave must be the child of the military member.Qualifying Relationship to the Child of the Military MemberYou(Eligible Employee)YOUR SPOUSE,PARENT OR CHILDNORELATIONSHIPNECESSARYMilitary Memberon coveredactive dutySON ORDAUGHTERChildThe Employee’s Guide to Military Family Leave7

Qualifying Exigency Leave(Continued) To attend post-deployment activities for up to 90 days following thetermination of the military member’s covered active duty, includingattending arrival ceremonies, reintegration briefngs and events, and otherofcial ceremonies or programs sponsored by the military, and to addressissues arising from the death of a military member, including attendingfuneral services for the military member. Any other event that you and your employer agree is a qualifyingexigency and agree to the timing and duration of the leave. To address certain activities related to the care of the military member’sparent who is incapable of self-care. These could include arranging foralternative parental care; providing care on a non-routine, urgent,immediate need basis; admitting or transferring the parent to a newcare facility; and attending certain meetings at a care facility or withhospice staf.Note: You do not need to be related to the military member’s parent. But, (1)the military member must be your spouse, parent or child, and (2) the parentfor whom you are taking leave must be the parent of the military member.Qualifying Relationship for Parental Care LeaveYou(Eligible Employee)YOUR SPOUSE,PARENT OR CHILDNORELATIONSHIPNECESSARYMilitary Memberon coveredactive dutyPARENTParent8 The Employee’s Guide to Military Family Leave

What are the certifcation requirements for qualifying exigency leave?If you are requesting leave for a qualifying exigency, your employer may require:1) a copy of the military member’s active duty orders (or other ofcialdocumentation issued by the military) which indicates the militarymember is on covered active duty or call to covered active duty status; You only need to provide a copy of the active duty orders or otherappropriate documentation once per deployment. Your employer may contact the Department of Defense to requestverifcation that the military member is on covered active duty.2) a statement or description of the appropriate facts regarding thequalifying exigency; Facts may include information on the type of leave needed and anyavailable written documentation (for example, copy of meetingannouncement, appointment confrmation with counselor orschool ofcial, copy of bill for legal or fnancial arrangements, orR & R orders).3) the approximate date on which the leave began (or will begin); and You may also be asked to provide an estimate of how long and/orhow often you will need leave.4) the contact information for any third party you are meeting. For example, the name, title, organization, address, telephonenumber, fax number, and e-mail address of the third party, as wellas a brief description of the purpose of the meeting. Your employer may contact the third party to confrm the natureof the meeting. Your permission is not required for this contact —however, your employer may NOT request additional informationfrom the third party during this contact.The Employee’s Guide to Military Family Leave9

Military Caregiver LeaveWho can take Military Caregiver Leave?To take military caregiver leave, you must be the spouse, parent, son ordaughter, or next of kin of the covered servicemember. ParentFor military caregiver leave, parent means the servicemember’s biological,adoptive, step or foster father or mother, or any other individual who stoodin loco parentis to the servicemember. This term does not include parents“in law.” Son or daughterFor military caregiver leave, son or daughter means the servicemember’sbiological, adopted, or foster child, stepchild, legal ward, or child for whomthe covered servicemember stood in loco parentis, and who is of any age.In Loco ParentisA person stands in loco parentis if that person provides day-to-day careor financial support for a child. A person who has no biological orlegal relationship with a child may nonetheless stand or have stood inloco parentis to the child for purposes of FMLA leave. (See Administrator’sInterpretation No. 2010-3 and Fact Sheets 28B and 28C).For example, an uncle who raised his niece may exercise his FMLA rightsto take military caregiver leave if the niece is a covered servicemember. Next of KinNext of kin is the nearest blood relative, other than the spouse, parent, son,or daughter, in the following order of priority:1) a blood relative who has been designated in writing by theservicemember for purposes of FMLA military caregiver leave2) blood relatives who have been granted legal custody of theservicemember3) brothers and Sisters4) grandparents5) aunts and uncles6) frst cousins10 The Employee’s Guide to Military Family Leave

Qualifying Family Relationship Under Military Caregiver LeaveYou are theServicemember’s.SpouseIn this order:1. One blood relativedesignated in writing **IF NONEParentCoveredServicemember2. All blood relativeswith legal custodyIF NONESon orDaughter3. All brothers andsistersIF NONE4. All grandparentsNext of KinIF NONE5. All aunts and unclesIF NONE6. All frst cousins** If the servicemember designates a next of kin in writing for purposes of FMLAmilitary caregiver leave, that relative is the only next of kin for FMLA leave purposes.If the servicemember makes no such designation, all the family members sharingthe same level of family relationship to the servicemember are considered thenext of kin. For example, if a servicemember has three siblings, and no otherblood relative has been designated in writing as next of kin for FMLA purposesor granted legal custody, all three siblings may take military caregiver leave asthe next of kin (either simultaneously or consecutively).The Employee’s Guide to Military Family Leave11

Military Caregiver LeaveMilitary caregiver leave may be taken to care for a “covered servicemember”with a serious injury or illness. A covered servicemember may be either acurrent servicemember OR a veteran of the Armed Forces. (Please see pg. 14 ifyou need leave to care for a veteran.)Current ServicememberWho is a covered servicemember?A covered servicemember is a current member of the Armed Forces, includinga member of the National Guard or Reserves, who is undergoing medicaltreatment, recuperation, or therapy, is otherwise in outpatient status, or isotherwise on the temporary disability retired list, for a serious injury or illness.What is a serious injury or illness of a current servicemember?For a current servicemember, a serious injury or illness is one that wasincurred by a servicemember in the line of duty on active duty that may renderthe servicemember medically unft to perform the duties of his or her ofce,grade, rank, or rating. A serious injury or illness also includes injuries or illnessesthat existed before the servicemember’s active duty and that were aggravated byservice in the line of duty on active duty.12 The Employee’s Guide to Military Family Leave

Military Caregiver Leave Taken for a Current ServicememberSTEP 1You must workfor a coveredemployer ANDyou must be aneligible employeeNOSTOPYou are not ableto take FMLAmilitary caregiverleavePlease see pg. 2YESSTEP 2The servicemember must be a current member of the Armed ForcesANDThe servicemember must be undergoing medical treatment, recuperation,or therapy; in outpatient status; or on the temporary disability retired listANDThe servicemember must have a “serious injury or illness”YESNOSTEP 3You must be thespouse, parent,child or nextof kin of theservicememberSTOPYou are not ableto take FMLAmilitary caregiverleaveNOPlease see pg. 10YESSTEP 4You may takeFMLA militarycaregiver leaveThe Employee’s Guide to Military Family Leave13

Military Caregiver LeaveVeteran of the Armed Forces* Military caregiver leave is not available to care for a veteran until March 8, 2013,the efective date of the 2013 FMLA regulations.Who is a covered servicemember?A covered servicemember is a veteran discharged under conditions other thandishonorable within the fve-year period before you frst take military caregiverleave to care for that veteran who is undergoing medical treatment, recuperation,or therapy for a serious injury or illness.For any veteran who was discharged prior to March 8, 2013, the period of timebetween October 28, 2009 and March 8, 2013 will not count as part of the fve-yearperiod. For example, if your family member became a veteran on October 28, 2009then you may begin to use your military caregiver leave entitlement at any timeup until March 8, 2018. As long as your military caregiver leave begins within fveyears of the veteran’s discharge, the 12-month period may extend beyond thefve-year period.What is a serious injury or illness of a veteran?For a veteran, a serious injury or illness is one that was incurred by the veteranin the line of duty on active duty in the Armed Forces or that existed beforethe veteran’s active duty and was aggravated by service in the line of duty onactive duty, and that is either: a continuation of a serious injury or illness that was incurred or aggravatedwhen the veteran was a member of the Armed Forces and rendered theservicemember unable to perform the duties of the servicemember’s ofce,grade, rank, or rating; or a physical or mental condition for which the veteran has received aDepartment of Veterans Afairs Service-Related Disability Rating (VASRD) of50 percent or greater. (The rating may be based on multiple conditions). a physical or mental condition that substantially impairs the veteran’s abilityto work because of a disability or disabilities related to military service, orwould do so absent treatment; or14 The Employee’s Guide to Military Family Leave

an injury that is the basis for the veteran’s enrollment in the Department ofVeterans Afairs Pr

military member, when the need for that counseling arises from the military member’s covered active duty and is provided by someone other than a health care provider. To attend military events and related activities. These could include ofcial military ceremonies, military programs, family support programs, and/or

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