(a) Eligible employees are entitled to FMLA leave to care for a
current member of the Armed Forces, including a member of the National
Guard or Reserves, or a member of the Armed Forces, the National Guard
or Reserves who is on the temporary disability retired list, who has a
serious injury or illness incurred in the line of duty on active duty
for which he or she is undergoing medical treatment, recuperation, or
therapy; or otherwise in outpatient status; or otherwise on the temporary
disability retired list. Eligible employees may not take leave under this
provision to care for former members of the Armed Forces, former members
of the National Guard and Reserves, and members on the permanent
disability retired list.
(1) A "serious injury or illness" means an injury or illness
incurred by a covered servicemember in the line of duty on active duty
that may render the servicemember medically unfit to perform the duties
of his or her office, grade, rank or rating.
(2) "Outpatient status," with respect to a covered servicemember,
means the status of a member of the Armed Forces assigned to either a
military medical treatment facility as an outpatient; or a unit
established for the purpose of providing command and control of members
of the Armed Forces receiving medical care as outpatients.
(b) In order to care for a covered servicemember, an eligible
employee must be the spouse, son, daughter, or parent, or next of kin
of a covered servicemember.
(1) A "son or daughter of a covered servicemember" means the
covered servicemember's biological, adopted, or foster child,
stepchild, legal ward, or a child for whom the covered servicemember
stood in loco parentis, and who is of any age.
(2) A "parent of a covered servicemember" means a covered
servicemember's biological, adoptive, step or foster father or mother,
or any other individual who stood in loco parentis to the covered
servicemember. This term does not include parents "in law."
(3) The "next of kin of a covered servicemember" is the nearest
blood relative, other than the covered servicemember's spouse, parent,
son, or daughter, in the following order of priority: blood relatives
who have been granted legal custody of the servicemember by court
decree or statutory provisions, brothers and sisters, grandparents,
aunts and uncles, and first cousins, unless 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. 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 shall 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. When such designation has been made, the designated
individual shall be deemed to be the covered servicemember's only next
of kin. For example, if a covered servicemember has three siblings and
has not designated a blood relative to provide care, all three siblings
would be considered the covered servicemember's next of kin.
Alternatively, where a covered servicemember has a sibling(s) and
designates a cousin as his or her next of kin for FMLA purposes, then
only the designated cousin is eligible as the covered servicemember's
next of kin. An employer is permitted to require an employee to provide
confirmation of covered family relationship to the covered
servicemember pursuant to Sec. 825.122(j).
(c) An eligible employee is entitled to 26 workweeks of leave to
care for a covered servicemember with a serious injury or illness
during a "single 12-month period."
(1) The "single 12-month period" described in paragraph (c) of
this section begins on the first day the eligible employee takes FMLA
leave to care for a covered servicemember and ends 12 months after that
date, regardless of the method used by the employer to determine the
employee's 12 workweeks of leave entitlement for other FMLA-qualifying
reasons. If an eligible employee does not take all of his or her 26
workweeks of leave entitlement to care for a covered servicemember
during this "single 12-month period," the remaining part of his or
her 26 workweeks of leave entitlement to care for the covered
servicemember is forfeited.
(2) The leave entitlement described in paragraph (c) of this
section is to be applied on a per-covered-servicemember, per-injury
basis such that an eligible employee may be entitled to take more than
one period of 26 workweeks of leave if the leave is to care for
different covered servicemembers or to care for the same servicemember
with a subsequent serious injury or illness, except that no more than
26 workweeks of leave may be taken within any "single 12-month
period." An eligible employee may take more than one period of 26
workweeks of leave to care for a covered servicemember with more than
one serious injury or illness only when the serious injury or illness
is a subsequent serious injury or illness. When an eligible employee
takes leave to care for more than one covered servicemember or for a
subsequent serious injury or illness of the same covered servicemember,
and the "single 12-month periods" corresponding to the different
military caregiver leave entitlements overlap, the employee is limited
to taking no more than 26 workweeks of leave in each "single 12-month
period."
(3) An eligible employee is entitled to a combined total of 26
workweeks of leave for any FMLA-qualifying reason during the "single
12-month period" described in paragraph (c) of this section, provided
that the employee is entitled to no more than 12 weeks of leave for one
or more of the following: because of the birth of a son or daughter of
the employee and in order to care for such son or daughter; because of
the placement of a son or daughter with the employee for adoption or
foster care; in order to care for the spouse, son, daughter, or parent
with a serious health condition; because of the employee's own serious
health condition; or because of a qualifying exigency. Thus, for
example, an eligible employee may, during the "single 12-month
period," take 16 weeks of FMLA leave to care for a covered
servicemember and 10 weeks of FMLA leave to care for a newborn child.
However, the employee may not take more than 12 weeks of FMLA leave to
care for the newborn child during the "single 12-month period," even
if the employee takes fewer than 14 weeks of FMLA leave to care for a
covered servicemember.
(4) In all circumstances, including for leave taken to care for a
covered servicemember, the employer is responsible for designating
leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the
designation to the employee as provided in Sec. 825.300. In the case
of leave that qualifies as both leave to care for a covered
servicemember and leave to care for a family member with a serious
health condition during the "single 12-month period" described in
paragraph (c) of this section, the employer must designate such leave
as leave to care for a covered servicemember in the first instance.
Leave that qualifies as both leave to care for a covered servicemember
and leave taken to care for a family member with a serious health
condition during the "single 12-month period" described in paragraph
(c) of this section must not be designated and counted as both leave to
care for a covered servicemember and leave to care for a family member
with a serious health condition. As is the case with leave taken for
other qualifying reasons, employers may retroactively designate leave
as leave to care for a covered servicemember pursuant to Sec.
825.301(d).
(d) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 26 workweeks of leave during the "single 12-month period"
described in paragraph (c) of this section if the leave is taken for
birth of the employee's son or daughter or to care for the child after
birth, for placement of a son or daughter with the employee for
adoption or foster care, or to care for the child after placement, to
care for the employee's parent with a serious health condition, or to
care for a covered servicemember with a serious injury or illness. This
limitation on the total weeks of leave applies to leave taken for the
reasons specified as long as a husband and wife are employed by the
"same employer." It would apply, for example, even though the spouses
are employed at two different worksites of an employer located more
than 75 miles from each other, or by two different operating divisions
of the same company. On the other hand, if one spouse is ineligible for
FMLA leave, the other spouse would be entitled to a full 26 workweeks
of FMLA leave.
[73 FR 68084, Nov. 17, 2008]
