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Does the Family and Medical Leave Act apply to Members of the Military?

Posted by Kira Fonteneau | Dec 28, 2018 | 0 Comments

The Family and Medical Leave Act (FMLA) is a federal law enacted in 1993 designed to allow covered employees to take unpaid and job-protected leave for qualified medical and family reasons. Under the FMLA, covered employees may take off up to 12 weeks per year to care for themselves or eligible family members. The law was intended to balance the demands of the workplace with the needs of families, and although the FMLA does not require employers to provide paid leave, employers can do so voluntarily. In addition, employees may substitute any paid leave they have accrued for FMLA leave.

Basic Coverages under the FMLA

Under the original provisions of the Family and Medical Leave Act, covered employees may take up to 12 weeks of unpaid leave per year for these purposes:

  • To care for a newborn child;
  • To care for a child adopted or placed into their foster care;
  • To care for a spouse or parent who is seriously ill;
  • To care for a child under the age of 18 seriously ill, or a disabled child of any age seriously ill;
  • For an employee to recover from their own serious illness.

FMLA Amendments for Military Families

In 2008, Congress amended the Family and Medical Leave Act to provide two new types of leave for covered employees with qualified family members in the military;

  • Active duty family member leave (also known as “qualifying exigency leave”); and
  • Military caregiver leave.

Active Duty Family Member Leave

Active duty family leave allows covered employees to take up to 12 weeks of unpaid, job-protected leave per year for “qualifying exigencies” that arise when an employee's spouse, parent, or child is on covered active duty or has been called to covered active duty.

For members of the Regular Armed Forces, “covered active duty” means deployment to a foreign country (this would include international waters). For members of the National Guard and Reserves, “covered active duty” means deployment of the member with one branch of the Regular Armed Forces to a foreign country to support a contingency operation.

There are 8 qualifying exigencies for which an employee can take active duty family member leave under the FMLA:

  • Short-Term Notice Deployment: An employee may take up to 7 calendar days to deal with issues that may arise from the notification of an impending call to covered active duty.
  • Military Events and Related Activities: Employees may take leave to attend military programs, ceremonies, events, briefings, family support and assistance programs, and other activities related to deployment to active duty.
  • Financial and Legal Arrangements: Updating bank accounts, wills, powers of attorney, etc.
  • Childcare and School Activities: Arranging care and schooling for the child of a family member called to covered active duty or is already deployed abroad.
  • Counseling: Employees may take leave to attend counseling for themselves, the deployed family member, or the child of the deployed family member.
  • Rest and Recuperation (R&R): Employees may take up to 15 days of leave to spend with a military family member on short-term R&R leave during active duty deployment.
  • Post-Deployment Activities: Employees may take time off to attend ceremonies, programs, events, briefings, and related activities that occur after the family member returns home from active duty, or to address issues and events that arise from the death of an active duty military family member.
  • Parental Care: Employees may take leave to care for a military family member's parent who is unable to care for themselves, and whose care is necessitated by the family member's active duty deployment.

Military Caregiver Leave

Eligible employees may take up to 26 weeks of unpaid, job-protected leave to care for a covered service member. “Covered service member” is defined as a current military member or veteran discharged (other than dishonorably) within five years of treatment who has incurred or aggravated a serious injury or illness while in the line of active duty.

A serious injury or illness is one that makes an active duty member medically unfit to perform his/her duties. For a veteran, a serious illness or injury is one that rendered them medically unfit to perform their military duties, qualifies them for certain VA benefits, or inhibits their ability to work.

Eligibility for FMLA for Military Families

For employees with military family members to be eligible for leave, they must meet all the criteria to be eligible for the Family and Medical Leave Act:

  • Work for a private employer with 50 or more employees, or work for a federal, state, or local government agency or elementary or secondary school;
  • Have worked for a covered employer for at least the past 12 months;
  • Have worked at least 1250 hours during the past 12 months;
  • Work within 75 miles of a site that has at least 50 employees.

FMLA Anti-Retaliation Provision

It is unlawful for a covered employer to deny, restrain, or interfere with an employee's right to take a leave under the Family and Medical Leave Act. It is also unlawful for a covered employer to retaliate against an employee or prospective employee or discriminate against them for exercising (or attempting to exercise) an FMLA right. If you or someone close to you has been subjected to retaliation or discrimination for exercising an FMLA right, or an employer has engaged in any other discrimination in the workplace, contact an experienced employment law attorney to assess your case and review your legal rights and options. Contact Fonteneau Law at (404) 383-5720 or through our website contact form.

About the Author

Kira Fonteneau

Partner and Managing Attorney of the Alabama Trial Practice Group at Barrett & Farahany Kira Fonteneau is a partner and the managing attorney of the Alabama trial group of Barrett & Farahany. Kira chose to specialize in employment law because she wanted to help employees take back power. ...

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