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
Revised to reflect updates to the New York City Earned Sick Time Act FAQs.
California employers seeking to educate employees about the rights and obligations of military leave and to demonstrate compliance with federal and California's military leave law should consider including this model policy statement in their handbook.
Updated to reflect a court decision striking down Pittsburgh's paid sick leave law, which was to take effect March 11, 2016.
New Mexico employers seeking to educate employees about their reinstatement rights following military service and to demonstrate their compliance with New Mexico's military leave law should consider including this model policy statement in their handbook.
The New Mexico Military Leave handbook statement has been enhanced to include leave rights for National Guard members.
Illinois employers seeking to educate employees about the availability of military leave and to demonstrate compliance with Illinois' military leave law should consider including this model policy statement in their handbook.
The updated statements reflect changes to the Paid Sick and Safe Time Handbook Statement: Seattle, Washington and the Military Leave Handbook Statement: Illinois.
Indiana employers employing 50 or more employees for each working day for at least 20 calendar weeks should consider including this model policy statement in their handbook.
HR guidance on effectively handling military leaves of absence.