The National Defense Authorization Act (NDAA) for FY 2010 also established a new “military caregiver” leave category. This type of leave allows an eligible employee to take up to 26 work weeks of leave during a 12-month period to care for a covered service member. 29 C.F.R. § 825.127 redefines a covered service member as the employee's spouse, son, daughter, or parent on active duty or call to active duty status. The employee may be a spouse, parent, child, or next of kin of the service member.
A veteran is considered a covered service member if he or she meets both of the following:
- He or she is undergoing medical treatment, recuperation or therapy for a serious injury or illness that was incurred or aggravated while on active duty in the Armed Forces, whether or not the illness or injury manifested itself before or after the member became a veteran.
- He or she was a member of the Armed Forces, National Guard or Reserves at any time during the five-year period before he or she began treatment, recuperation or therapy. In other words, the FMLA now allows the caregiver to take up to 26 weeks of leave to care for a veteran for up to five years after the service member leaves military service.
The military caregiver regulations also establish a new category of eligible employees called “next of kin.” Next of kin excludes a service member’s spouse, parents or children, and is defined in 29 C.F.R. § 825.122(e) as the following blood relatives, in order of priority:
- Blood relatives with legal custody of the service member by court order or statute
- Aunts and uncles
- First cousins
If no designation of a next of kin is made, and there are multiple family members with the same level of relationship to the service member, all such family members shall be considered the covered service members next of kin and may take FMLA leave to provide care, either consecutively or simultaneously. The service member, however, may designate any specific blood relative as “next of kin” in writing. Employers can ask employees for reasonable documentation of family relationships; however, a single statement will suffice.
The NDAA establishes a different calendar for military caregiver leave. Military caregiver leave begins with the first date of caregiver leave and ends 12 months later This differs from the regular FMLA year and if an employee takes military caregiver FMLA leave, the employer will have to track FMLA use under the two calendars. The DOL’s regulations state that “once an employee takes military caregiver leave and has begun to use that type of FMLA during the military FMLA year, he/she can take a maximum of 26 weeks of FMLA leave for any purpose during that 12 month period. If he/she takes non-military FMLA leave during the military FMLA year to take care of his/her own serious health condition that counts against the maximum 26 weeks of FMLA leave the service member is entitled to during that 12 month period.” The employer continues to count the service member’s FMLA leave against his or her entitlement as measured during the regular FMLA year as well. 29 C.F.R. § 825.127(c)(1).
The maximum of 26 weeks of caregiver leave may be taken in a single block, reduced leave schedule or intermittently during the employee’s military FMLA year. Military caregiver leave cannot be carried over from year to year; it runs during a single 12-month period. It is possible, however, for an eligible employee to take more than one military caregiver entitlement because this type of leave, according to the regulations, applies on a per-service-member, per-injury basis in a single 12-month period.
Dual employment in the case of spouses working for the same employer can result in further complications if they wish to take military caregiver FMLA leave. The employees may be limited to a combined total of 26 work weeks of leave during the single 12-month period if the leave is taken for the birth of a child or to care for a child after birth, for placement of a child for adoption or foster care or to care for the child after placement, to care for the employee’s parent with a serious health condition, or to care for a covered service member with a serious illness or injury. 29 C.F.R. § 825.127(d).
NDAA 2010 also expanded the definition of a “serious injury or illness” to include care for covered service members whose pre-existing injury or illness was aggravated in the line of duty (29 C.F.R. § 825.127(a)(1)) on active duty in the Armed Forces and manifested itself before or after the member became a veteran, and is:
- A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the service member unable to perform the duties of the service member's office, grade, rank, or rating; or
- A physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50 percent or greater and such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave; or
- A physical or mental condition that substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; or
- An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
Previously, the law allowed military caregiver leave only for serious injury or illness incurred while on active duty that rendered the service member medically unfit to perform the duties of his office, grade, rank, or rating and for which he was undergoing medical treatment, recuperation, therapy, or outpatient treatment.
To account for the covered veterans, the new 2013 changes also expand the list of health care providers who are authorized to complete a certification for military caregiver leave, the information required on the certification forms, and the acceptable documentation employees may provide to substantiate the leave.