What Is Military Caregiver Leave Under FMLA? What to Know

As military families, things might happen that may make it hard to balance civilian and military life. For example, taking on the role of a military caregiver.

These loved ones — who may be wives, husbands, mothers, fathers, friends, or even neighbors — make huge sacrifices every day as they juggle their own careers on days that always seem to be packed with responsibilities. That’s where the Military Family Leave section of the Family and Medical Leave Act (FMLA) may help.

What Is Military Caregiver Leave Under FMLA?

Military caregiver leave was added to the Family and Medical Leave Act (FMLA) in 2010 as an expansion that would allow eligible employees to take up to 26 weeks of leave in a single 12-month period to care for a family member (spouse, son or daughter, parent, next of kin) who is a covered servicemember or Veteran with a serious injury or illness.

Which Veterans Are Covered Under the Military Caregiver Leave Under FMLA?

A Veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness is a covered Veteran if he or she:

• was a member of the Armed Forces (including a member of the National Guard or Reserves)
• was discharged or released under conditions other than dishonorable
• was discharged within the five-year period before the eligible employee first takes FMLA military caregiver leave to care for him or her

A serious injury or illness is one that is incurred by a servicemember while on active duty that may cause them to be medically unfit to perform the duties of his or her office, grade, rank, or rating. A serious injury or illness also includes injuries or illnesses that existed before the servicemember’s active duty and that were aggravated by service while on active duty.

Who Is Eligible for Military Caregiver Leave?

To be eligible for Military Family Leave, the caregiver needs to work for a covered employer, which are employers with at least 50 employees, unless they are: 

• Government agencies including local, state, and federal employees; and
• Public and private elementary, middle, and high school employees.

Those that work for a covered employer must also: 

• Have worked at the same place for at least 12 months (does not have to be consecutive);
• Have worked at least 1,250 hours in the 12 months before taking leave (approximately 27 hours a week); and
• Worked at a place where the employer has at least 50 employees within 75 miles.

To be eligible for Military Caregiver leave, the caregiver(s) must be a spouse, parent, child, or relative (“next of kin”) of the covered servicemember.

Who Is Considered “Next of Kin”?

The “next of kin” of a covered servicemember/Veteran is the nearest blood relative, other than the Veteran’s spouse, parent, son, or daughter, in the following order of priority:

1. A blood relative who has been designated in writing by the service member as the next of kin for FMLA purposes
2. A blood relative who has been granted legal custody of the service member
3. Brothers and sisters
4. Grandparents
5. Aunts and uncles
6. First cousins

If the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA, then that individual is deemed to be the servicemember's or Veteran's only FMLA next of kin. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members will be considered the covered servicemember's next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously.

How Is FMLA Military Caregiver Leave Requested?

1. Notify the employer as soon as possible (preferably 30 days in advance).
2. The employer has 5 business days to tell the employee if they are eligible for FMLA.
3. The employer provides the employee with FMLA rights and responsibilities and may request documentation, such as a copy of the VARSD rating determination and/or a WH-35 certification, signed by a doctor.
4. With at least 15 days before leave starts, give a written, informational, statement to the employer to certify the need for leave.
5. Employer will notify the covered employee whether leave has been designated as FMLA within 5 business days.

It is important to also understand the general leave policy of the employer. There are instances where the employee must comply both  to the FMLA regulations and to the employer’s leave policy.

If you have questions about benefits your family may be eligible for, contact AAFMAA’s Member Benefits team at 703-707-1182 to connect with a representative that will be committed to helping you and your family get the benefits you’ve earned and deserve.