Overview: The Family and Medical Leave Act (FMLA) allows eligible employees with covered family members serving in the military to take two types of leave - military caregiver leave and military or qualifying exigency leave. Military caregiver leave gives eligible employees the right to take up to 26 weeks of unpaid leave during a single 12-month period to care for a covered servicemember with a serious injury or illness incurred or aggravated in the line of duty. Military exigency leave allows an eligible employee whose spouse, son, daughter or parent is called up for covered active duty, or is notified of an impending call or order to covered active duty, to take 12 weeks of unpaid leave for certain exigencies related to the call-up of their family member. Examples of exigencies include leave to attend military events and related activities, to make childcare arrangements, to receive counseling and to rest and recuperate.
In addition to the FMLA, several states require employers to provide employees with leave if the employee has a spouse or other covered family member serving in the military. These state laws may cover different family relationships (such as domestic partners), have more flexible eligibility requirements, have greater leave rights (such as paid leave) and/or have different ways an employee may qualify for leave. Employers should ensure that both state and federal laws are identified and understood. Certifications and other employer-required forms may need to be modified based on the federal and state requirements.
Employers must also be mindful that the FMLA's military exigency and caregiver leave are in addition to the rights provided to servicemembers under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). Moreover, there are instances where USERRA and the FMLA overlap. For example, when determining FMLA eligibility, employees who are returning from uniformed services must be credited with hours they would have worked had they not been on military leave. Many states also offer employment protection for individuals who serve in the military or who are called to serve while employed. Employers must be diligent in considering all laws when handling military leave issues.
Trends: Now that same-sex marriage has been legalized in all 50 states and the District of Columbia, employers should make sure that their family military leave policies include same-sex spouses under the definition of spouse.
Author: Melissa S. Burdorf, JD, Legal Editor
Updated to reflect forthcoming military leave law amendments.
Updated to reflect the forthcoming paid family leave benefits requirements.
Updated to include information on individual liability under the federal FMLA in a federal court ruling covering Vermont employers.
As a result of Michigan's new Civil Air Patrol Employment Protection Act, handbook statements have been added and updated in the Michigan employee handbook.
Updated to include information on individual liability under the FMLA in a federal court ruling covering Connecticut, New York and Vermont employers.
Updated to include information on individual liability under the federal FMLA in a federal court ruling covering Connecticut employers.
Michigan employers with one or more employees seeking to educate employees who qualify about the availability of leave for Civil Air Patrol missions and to demonstrate compliance with the law should consider including this model policy statement in their handbook.
Updated to reflect forthcoming pregnancy accommodation requirements.
Revised to reflect new legislation providing job-protected leave for civil air patrol members, effective April 5, 2016.
HR guidance on effectively handling military leaves of absence.