Military Family Leave Provisions

Qualifying Exigency Leave

30. What is “qualifying exigency leave?”³⁹

“Qualifying exigency leave” is one of two military family leave provisions (same employee/employer eligibility rules as traditional FMLA leave). This leave helps families of a covered military member manage their affairs while the member is on active duty in support of a military operation. This provision makes the normal unpaid 12 work weeks of FMLA job-protected leave available to eligible employees when a covered military member is on or called to active duty. A covered military member is the employee’s spouse, son/daughter (without the limiting age requirement under traditional FMLA leave) or parent who is on active duty or called to active duty status.⁴⁰

31. Are families of service members in the Regular Armed Forces eligible for qualifying exigency leave?⁴¹

Yes. Originally, this military family leave entitlement that extends FMLA leave due to a qualifying exigency was only offered to family members of National Guard and Reserves and certain retired military. However, in October 2009, the President signed the National Defense Authorization Act of 2010 (NDAA 2010) which expanded this qualifying exigency leave to members in the Regular Armed Forces.

32. What is a “qualifying exigency?”⁴²

The Department of Labor developed a list of eight qualifying exigencies that encompass a wide range of specific activities in the following broad categories:

• Short notice deployment
• Military events and related activities (official ceremonies/events, briefings)
• Child care and school activities (not on a routine, regular or everyday basis)
• Financial and legal arrangements
• Counseling
• Rest and recuperation
• Post-deployment activities
• Additional activities that the employer and employee agree upon as qualifying exigencies

33. How much leave can I take if I need leave for both a serious health condition and a qualifying exigency?⁴³

Qualifying exigency leave, like leave for a serious health condition or birth/adoption, is a FMLA-qualifying reason for which an eligible employee may use his or her entitlement for up to 12 work weeks of FMLA leave each year. An eligible employee may take all 12 weeks of his or her FMLA leave entitlement as qualifying exigency leave or the employee may take a combination of 12 weeks of leave for both qualifying exigency leave and leave for a serious health condition.

Military Caregiver Leave

34. What is “military caregiver leave?”⁴⁴

“Military caregiver leave” is the second of the two military family leave provisions. An “eligible employee” is entitled to take up to 26 work weeks of leave to care for a covered service member with a serious injury or illness. An “eligible employee” is the spouse, son, daughter, parent or next of kin of a “covered service member.” The serious injury or illness can either be one incurred by the covered service member in the line of active duty or a preexisting injury that is aggravated by service in the line of duty while on active duty. In addition to current members of the Armed Forces, National Guard or Reserves, the NDAA 2010 expanded the definition of a “covered service member” to include veterans undergoing treatment for a serious injury or illness incurred or aggravated by service in the line of duty if such treatment occurs within five years of leaving service.

35. Can I take military caregiver leave for more than one seriously injured or ill service member, or more than once for the same service member if he or she has a subsequent serious injury or illness?⁴⁵

Yes. The military caregiver leave is a “per-service member, per-injury” entitlement. So, an eligible employee may take 26 work weeks of leave to care for one covered service member in a “single 12-month period,” and then take another 26 work weeks of leave in a different “single 12-month period” to care for another covered service member. This eligible employee may also take the 26 work weeks of leave in different single 12-month periods to care for the same service member with a subsequent serious injury or illness (e.g., if the service member is returned to active duty and suffers another injury).

36. How is leave designated if it qualifies as both military caregiver leave and leave to care for a family member with a serious health condition?⁴⁶

For military caregiver leave that also qualifies as leave taken to care for a family member with a serious health condition, the regulations provide that an employer must designate the leave as military caregiver leave first. The regulations also prohibit an employer from counting leave that qualifies as both types against both an employee’s entitlement to 26 work weeks of military caregiver leave and 12 work weeks of leave for other FMLA-qualifying reasons.