For most qualifying purposes, the Family and Medical Leave Act (FMLA) permits eligible employees to take up to 12 weeks of unpaid leave per year. However, one form of leave can last for much longer. An employee who qualifies for “military caregiver leave” has a right to up to 26 weeks of leave to provide care for an ill or injured military servicemember. But this form of leave is limited in other ways.

FMLA Eligibility

As a threshold for eligibility, an employee must have been with the employer for at least one year and have worked more than 1250 hours in the past 12 months. In addition, the employee must work within a 75-mile radius of at least 50 total employees of the same employer.

For more on FMLA eligibility, read “Who Is an FMLA Eligible Employee?”.

FMLA Qualifying Circumstances

Employees most commonly take FMLA leave due to the birth/adoption of a child or due to a serious medical condition that they or a close family member is suffering.

FMLA leave is also available in two situations involving military service. These scenarios are respectively known as “qualifying exigency leave” and “military caregiver leave.”

Under the FMLA, employees are limited to 12 weeks of leave per year based on birth/adoption of a child, serious medical conditions, and qualifying exigencies. Only military caregiver leave has a separate maximum leave period.

Covered Servicemembers

Employees may be eligible for military caregiver leave based on the serious injury or illness of a family member who is a “covered servicemember.”

Covered servicemembers are current members of the U.S. Armed Forces, including a member of the National Guard or Reserves, who are either:

• receiving medical treatment, recuperation, or therapy;
• in outpatient status; or
• on the temporary disability retired.

The above conditions must be based on a “serious injury or illness.”

Serious Injury or Illness

Under the FMLA, a “serious injury or illness” is one that a servicemember incurred in the line of duty on active duty that may cause the servicemember to be medically unfit to perform the duties of their office, grade, rank, or rating. Pre-existing injuries or illnesses aggravated by active duty service also qualify.

Family Relationship

To take military caregiver leave under the FMLA, the covered servicemember must be the employee’s spouse, child, parent, or next of kin.

Available Leave

An employee may take up to 26 weeks of FMLA to care for a covered servicemember. However, unlike other forms of FMLA leave, this leave is limited to a single leave period that does not recur annually. More specifically, the 26 weeks must be taken in a single 12-month period that begins when the employee first takes military caregiver leave for the particular servicemember and illness/injury.

Note; If the employee’s covered servicemember relative has a different serious illness or injury, then the employee may be eligible for another leave of up to 26 weeks in a new single 12-month period.

Certification

As with other forms of FMLA leave, employers may require employees to provide documentation certifying their eligibility to take military caregiver leave.

The U.S. Department of Labor provides an optional “Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave under the Family and Medical Leave Act” form.

Process FMLA Requests Carefully

As with all forms of FMLA leave, an employee doesn’t have to specifically request “military caregiver leave” or even “FMLA leave.” Once the employee provides enough information that they may qualify for leave protected by the FMLA, employers must provide appropriate documentation of employee rights and eligibility. Failing to do so or to designate leave as FMLA leave could result in an employee retaining the right for protected leave at a later date, among other potential negative consequences to the employer.