FAMILY MILITARY LEAVE PROVISIONS: WHO IS COVERED?

With our armed forces coming back from abroad, many families are facing the prospects of caring for our wounded soldiers. This article discusses some of the ways families can take medical leave in order to help their injured loved ones. Family military leave is now available in two broad categories: 1) to care for an injured services member; and 2) for various short-term exigencies that arise because of a service member’s frequently unexpected military obligations. See, 29 CFR Sec. 825.126-27. Under federal guidelines, an employee is entitled to take up to twenty-six weeks of leave in a single twelve- month period to care for a covered service member with a serious injury or illness. Employees may take leave to care for an injured service member who is the employee’s spouse, parent, child, or for a relative who is the employee’s “next of kin,” which is defined as the service member’s nearest blood relative (aside from those individuals already named). The regulations prioritize who is considered next of kin, but allow a service member to designate another blood relative as his or her nearest blood relative. A covered service member is defined as a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. Also included in the definition is a veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness if the veteran was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy. The “leave year” for military caregiver leave is based on a single 12-month period and begins with the first day the employee takes leave. This “leave year” differs significantly from how a leave year is computed for all other forms of FMLA qualifying leave, including military exigency leave. Qualifying exigency leave under the FMLA entitles an employee to take up to 12 weeks of leave due to circumstances arising out of the fact that employee’s spouse, child, or parent has been called up to active duty for service in a foreign country. Under the regulations, a qualifying exigency can include any of the following: short-notice deployment, military events and activities related to a call to active duty, child care, counseling, rest and recuperation, and post-deployment activities such as reintegration ceremonies. These guidelines present tools for service members and their families to receive the care they need after sacrificing so much for so many. The information provided above presents general information on employee rights and is not intended to provide legal advice. If you believe that an employer has violated your rights relating to FMLA or other rights, contact one of the employment attorneys at Hawks Quindel, S.C.