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
HR departments should get ready now to comply with a wide variety of employment law requirements that are changing on July 1. Depending on the employer's presence in various jurisdictions, a number of workplace practices may be affected by legislative changes, ranging from employment contracts to payroll.
Updated to reflect the addition of military exigencies as a qualifying reason for taking leave under the Connecticut Family and Medical Leave Act, effective June 7, 2016.
Updated to reflect forthcoming amendments to the military leave law.
Updated to reflect forthcoming pregnancy accommodation requirements.
Revised to incorporate an amendment extending reinstatement rights to additional servicemembers, effective June 7, 2016.
Updated when to include, policy and guidance to reflect new restatement rights for organized militia members in the active service of any state, not just West Virginia, effective June 7, 2016.
Revised to incorporate New York City pregnancy accommodation enforcement guidance, issued May 6, 2016.
HR guidance on effectively handling military leaves of absence.