Fact Sheet #28M(a): Military Caregiver Leave for a Current Servicemember under the Family and Medical Leave Act
ABOUT THE FMLA
The FMLA provides eligible employees of covered employers with job-protected leave for qualifying family and medical reasons and requires continuation of their group health benefits under the same conditions as if they had not taken leave. FMLA leave may be unpaid or used at the same time as employer-provided paid leave. Employees must be restored to the same or virtually identical position when they return to work after FMLA leave.
Eligible employees: Employees are eligible if they:
- Work for a covered employer for at least 12 months,
- Have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and
- Work at a location where the employer has at least 50 employees within 75 miles.
Covered employers: Covered employers under the FMLA include:
- Private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or the previous calendar year,
- Public agencies, including Federal, State, and local government employers, regardless of the number of employees, and
- Local educational agencies, including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees.
The FMLA protects leave for:
- The birth of a child or placement of a child with the employee for adoption or foster care,
- The care for a child, spouse, or parent who has a serious health condition,
- A serious health condition that makes the employee unable to work, and
- Reasons related to a family member’s service in the military, including:
- Qualifying exigency leave – leave for certain reasons related to a family member’s foreign deployment, and
- Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness.
For more information about the FMLA generally, see Fact Sheet #28.
MILITARY CAREGIVER LEAVE ENTITLEMENTS
Military caregiver leave allows an eligible employee who is the spouse, child, parent, or “next of kin” of a covered servicemember with a serious injury or illness to use 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 servicemember or a recent veteran. This fact sheet is about caring for a covered current servicemember under the military caregiver provisions of the FMLA. For more information about caring for a covered veteran under the military caregiver provisions of the FMLA, see Fact Sheet #28M(b).
A current servicemember is a 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 while 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 while on active duty.
NEXT OF KIN
An employee may use military caregiver leave to care for a current servicemember when the employee is the servicemember’s spouse, child, parent, or next of kin.
“Next of kin” means that the employee is the servicemember’s nearest blood relative, other than the servicemember’s spouse, parent, or child, in the following order of priority:
- All blood relatives who have been granted legal custody of the current servicemember, or, if none,
- All brothers and sisters, or, if none,
- All grandparents, or, if none,
- All aunts and uncles, or, if none,
- All 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.
- Russell is a current servicemember who has three siblings and has not designated in writing a blood relative as next of kin for FMLA purposes. All three siblings would qualify as his next of kin and, if they meet the FMLA eligibility criteria, may take leave to care for him if Russell has a qualifying serious injury or illness. In addition, any of Russell’s parents, his spouse, or any of his children, if they meet the FMLA eligibility criteria, may take military caregiver leave to care for him.
- Pat is a current servicemember who designates in writing a first cousin as her next of kin for FMLA purposes. The first cousin is Pat’s only next of kin, and, if an eligible employee, they may take FMLA leave to care for Pat if she has a qualifying serious injury or illness. In addition, any of Pat’s parents, her spouse, or any of her children, if they meet the FMLA eligibility criteria, may take military caregiver leave to care for her.
SINGLE 12-MONTH PERIOD
An eligible employee may take military caregiver leave during a single 12-month period. The “single 12-month period” for military caregiver leave begins on the first day the employee uses leave for this reason and ends 12 months later, regardless of the 12-month period established by the employer for other FMLA leave reasons. For more information about the 12-month period under the FMLA for other types of FMLA leave, see Fact Sheet 28H.
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. An eligible employee may use up to 12 of the 26 weeks for an FMLA-qualifying reason other than military caregiver leave, or may use up to 26 weeks of military caregiver leave.
Hamza uses FMLA leave to help his parent who is a current servicemember recover from a serious injury incurred in the line of duty. The single 12-month period begins on July 15, the first day Hamza needs military caregiver leave and runs from that date to July 15 of the next year. Hamza has 26 weeks available to use. Hamza uses 20 weeks of FMLA military caregiver leave from July through December and has 6 weeks of FMLA leave remaining.
Hamza uses 2 weeks of FMLA leave in January for his own serious health condition, leaving him with 4 weeks of FMLA leave remaining, which he may use for any FMLA-qualifying reason.
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 the servicemember has a different qualifying serious injury or illness.
Demonte is an eligible employee who uses military caregiver leave to care for his spouse, a current servicemember who sustained severe burns while on active duty. If, in a later 12-month period, Demonte’s spouse is diagnosed with a traumatic brain injury that was incurred during the same incident as the burns, Demonte would be entitled to an additional 26 weeks of military caregiver leave to care for her.
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, for up 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 and the same serious injury or illness both when the family member is a current servicemember and when the family member is a veteran.
Rylee is eligible to use FMLA leave, and she is the designated next of kin for her brother Vince. Vince receives a serious spinal cord injury in the line of duty while on active duty. Rylee uses 26 weeks of military caregiver leave during a single 12-month period to help with Vince’s recovery. Two years later, Rylee uses military caregiver leave again to provide care for Vince, now a recent veteran, as he continues to need assistance due to his serious spinal cord injury.
An employee may be required to provide the employer with a certification completed by an authorized health care provider or 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 certification form WH-385.
An authorized health care provider is a:
- United States Department of Veterans Affairs (VA) health care provider,
- DOD TRICARE network authorized private health care provider,
- DOD non-network TRICARE authorized private health care provider, or
- Non-military affiliated health care provider.
If the employee provides certification from a non-military-affiliated health care provider, the employer may request a second or third opinion of the current servicemember’s serious injury or illness. An employer may not request a second or third opinion when a certification is provided by a military-affiliated health care provider.
For more information about using FMLA leave because of a family member’s military service generally, see Fact Sheet #28M.
Some States have their own family and medical leave laws. Nothing in the FMLA prevents employees from receiving protections under other laws. Workers have the right to benefit from all the laws that apply.
Protection from Retaliation
The FMLA is a federal worker protection law. Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Any violations of the FMLA or the FMLA regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA. For more information about prohibited employer retaliation under the FMLA, see Fact Sheet #77B and Field Assistance Bulletin 2022-2.
The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. 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. State employees may be subject to certain limitations in pursuit of direct lawsuits regarding leave for their own serious health conditions. 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.
Where to Obtain Additional Information
For additional information, visit our Wage and Hour Division Website: http://www.dol.gov/agencies/whd 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.