Wage and Hour Division (WHD)
(February 2013) (PDF)
Fact Sheet #28M(a): Military Caregiver Leave for a Current Servicemember under the Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) entitles eligible employees who work for covered employers to take unpaid, job-protected leave to care for a family member who is a current servicemember with a serious injury or illness. FMLA leave for this purpose is called “military caregiver leave.”
MILITARY CAREGIVER LEAVE ENTITLEMENTS
Military caregiver leave allows an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness to take up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to provide care for the servicemember.
A covered servicemember is a current member of the Armed Forces, including a member of the National Guard or Reserves, who is receiving medical treatment, recuperation, or therapy, or is in outpatient status, or is on the temporary disability retired list for a serious injury or illness. A serious injury or illness is one that is incurred by a servicemember in the line of duty on active duty that may cause the servicemember 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 in the line of duty on active duty.
NEXT OF KIN
The “next of kin” of a current servicemember is the nearest blood relative, other than the current servicemember’s spouse, parent, son, or daughter, in the following order of priority:
- a blood relative who has been designated in writing by the servicemember as the next of kin for FMLA purposes
- blood relative who has been granted legal custody of the servicemember
- brothers and sisters
- grandparents
- aunts and uncles
- first cousins
When a servicemember designates in writing a blood relative as next of kin for FMLA purposes, that individual is deemed to be the servicemember’s only FMLA next of kin. When a current servicemember has not designated in writing a next of kin for FMLA purposes, and there are multiple family members with the same level of relationship to the servicemember, all such family members are considered the servicemember’s next of kin and may take FMLA leave to provide care to the servicemember.
For example, if a current servicemember has three siblings and has not designated a blood relative to provide care, all three siblings would be considered the servicemember’s next of kin. Alternatively, where a current servicemember has one or more siblings and designates a cousin as his or her next of kin for FMLA purposes, then only the designated cousin is eligible as the servicemember’s next of kin.
SINGLE 12-MONTH PERIOD
The single 12-month period for military caregiver leave begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12-month period established by the employer for other FMLA leave reasons.
An eligible employee is limited to a combined total of 26 workweeks of leave for any FMLA-qualifying reasons during the single 12-month period. Up to 12 of the 26 weeks may be for an FMLA-qualifying reason other than military caregiver leave. For example, if an employee uses 10 weeks of FMLA leave for his or her own serious health condition during the single 12-month period, the employee has up to 16 weeks of FMLA leave left for military caregiver leave.
Military caregiver leave is available to an eligible employee once per servicemember, per serious injury or illness. However, an eligible employee may take an additional 26 weeks of leave in a different 12-month period to care for the same servicemember if he or she has another serious injury or illness. For example, if an eligible employee takes military caregiver leave to care for a current servicemember who sustained severe burns, the employee would be entitled to an additional 26 weeks of caregiver leave in a different 12-month period if the same servicemember is later diagnosed with a traumatic brain injury that was incurred in the same incident as the burns.
An eligible employee may also take military caregiver leave to care for more than one current servicemember or covered veteran with a serious injury or illness at the same time, but the employee is limited to a total of 26 weeks of military caregiver leave in any single 12-month period. Additionally, an eligible employee may be able to take military caregiver leave for the same family member with the same serious injury or illness both when the family member is a current servicemember and when the family member is a veteran.
CERTIFICATION REQUIREMENTS
An employer may require that leave to care for a covered servicemember be supported by a certification completed by an authorized health care provider or by a copy of an Invitational Travel Order (ITO) or Invitational Travel Authorization (ITA) issued to any member of the covered servicemember’s family. Employees may use the U. S. Department of Labor’s optional form WH-385.
An authorized health care provider is a:
(1) United States Department of Defense (“DOD”) health care provider;
(2) United States Department of Veterans Affairs (“VA”) health care provider;
(3) DOD TRICARE network authorized private health care provider;
(4) DOD non-network TRICARE authorized private health care provider; or
(5) non-military-affiliated health care provider.
An employer may request a second or third opinion of a current servicemember’s serious injury or illness only when a certification is provided by a non-military-affiliated health care provider.
ENFORCEMENT
It is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA. See Fact Sheet 77B: Protections for Individuals under the FMLA. The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. Most federal and certain congressional employees are also covered by the law but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress. If you believe that your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division or file a private lawsuit against your employer in court.
For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.
For information on the effective date, click here.