Military Caregiver Leave

Military caregiver leave is a special type of Family and Medical Leave Act leave that allows an eligible employee of a covered employer to take up to 26 workweeks of unpaid, job-protected leave during a single 12-month period to care for a covered servicemember with a serious injury or illness.

To take military caregiver leave, the employee must be the covered servicemember’s spouse, son, daughter, parent, or next of kin. The employee may take leave in one continuous block, intermittently, or on a reduced leave schedule when medically necessary.

A covered servicemember is either:

• A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy; is otherwise in outpatient status; or is otherwise on the temporary disability retired list for a serious injury or illness; or
• A covered veteran who was discharged or released under conditions other than dishonorable within the five years before the employee first begins military caregiver leave and who is undergoing medical treatment, recuperation, or therapy for a qualifying serious injury or illness.

An employee must begin leave to care for a covered veteran within five years after the veteran’s discharge or release from active duty. The single 12-month military-caregiver-leave period may extend beyond the end of that five-year window.

Next of Kin
For military caregiver leave, “next of kin” means the covered servicemember’s nearest blood relative other than the servicemember’s spouse, parent, son, or daughter. The order of priority is:

• Blood relatives granted legal custody of the covered servicemember by court decree or statutory authority.
• Brothers and sisters.
• Grandparents.
• Aunts and uncles.
• First cousins.

A covered servicemember may designate another blood relative in writing as next of kin for military caregiver leave purposes. If the servicemember makes no written designation and multiple relatives have the same priority level, all relatives at that level are treated as next of kin and may take leave consecutively or simultaneously.

The city may require reasonable documentation of the employee’s relationship to the covered servicemember. A simple statement from the employee is ordinarily sufficient unless the city has a reasonable basis to question the relationship.

Leave Calculation
The single 12-month period for military caregiver leave begins on the first day the employee takes leave to care for the covered servicemember and ends 12 months later. It is separate from the city’s usual 12-month method for calculating standard FMLA leave.

During that single 12-month period, the employee may take no more than a combined total of 26 workweeks of FMLA leave for all FMLA-qualifying reasons. Thus, standard FMLA leave—for the employee’s own serious health condition, family-care leave, bonding leave, or qualifying-exigency leave—reduces the remaining military caregiver leave available during that single 12-month period.

Conversely, military caregiver leave also counts against the employee’s ordinary 12-workweek FMLA entitlement during the city’s regular FMLA leave year. Any unused portion of the 26-week military caregiver entitlement is forfeited at the end of the single 12-month period and does not carry over.

An employee may be entitled to more than one military caregiver leave period when caring for a different covered servicemember or for the same servicemember with a subsequent, distinct qualifying serious injury or illness. However, the employee may not take more than 26 workweeks of military caregiver leave during any single 12-month period, even if caring for more than one servicemember.

Spouses Working for City
When spouses work for the same city, they are generally limited to a combined total of 26 workweeks of FMLA leave during the single 12-month period when leave is taken for military caregiver leave. The combined limitation may also apply to certain other FMLA leave reasons, including birth, adoption, foster-care placement, and care for a parent with a serious health condition.

Serious Injury or Illness
For a current servicemember, a serious injury or illness is one incurred in the line of duty on active duty—or a pre-existing injury or illness aggravated in the line of duty on active duty—that may render the servicemember medically unfit to perform the duties of the servicemember’s office, grade, rank, or rating.

For a covered veteran, a serious injury or illness includes a qualifying physical or mental condition incurred in or aggravated by active-duty service. The condition may have manifested before or after the person became a veteran and includes:

• A continuation of an injury or illness incurred or aggravated in the line of duty that rendered the person unable to perform military duties.
• A condition assigned a Department of Veterans Affairs service-connected disability rating of 50 percent or more when the rating is based, in whole or in part, on the condition requiring caregiver leave.
• A condition that substantially impairs the veteran’s ability to secure or follow substantially gainful employment because of a service-related disability, or would do so without treatment.
• An injury, including a psychological injury, for which the veteran is enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Certification
The city may require certification supporting an employee’s request for military caregiver leave. For current servicemembers, the city may use DOL Form WH-385, Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave. For veterans, the city may use DOL Form WH-385-V, Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave.

The FMLA permits certification by specified military, Veterans Affairs, Department of Defense, TRICARE-network or non-network, and other authorized health-care providers, as applicable to the servicemember or veteran. The city should use the current DOL certification forms and comply with the confidentiality requirements applicable to medical information.