Caring for a covered veteran? Here's everything you need to know about military caregiver leave — and to what kind of leave you're entitled.
What is military caregiver leave?
The Family and Medical Leave Act (FMLA) entitles "eligible employees who work for covered employers to take unpaid, job-protected leave to care for a family member who is a covered veteran with a 'serious injury or illness,'" according to U.S. Wage and Hour Division. FMLA leave for this reason is, hence, called “military caregiver leave."
Specifically, military caregiver leave allows any eligible employee — a spouse, son, daughter, parent or “next of kin” of a covered veteran with a serious injury or illness — to take up to a total of 26 workweeks of unpaid leave during a single 12-month period. This time off must be used to provide care for the covered veteran.
So who is a covered veteran?
"A veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness is a covered veteran if he or she was a member of the Armed Forces (including a member of the National Guard or Reserves; was discharged or released under conditions other than dishonorable and was discharged within the five-year period before the eligible employee first takes FMLA military caregiver leave to care for him or her," according to U.S. Wage and Hour Division.
It's important to also understand what is considered a serious injury or illness.
"A serious injury or illness means an injury or illness that was incurred by the covered veteran in the line of duty on active duty in the Armed Forces or that existed before the veteran’s active duty and was aggravated by service in the line of duty on active duty," according to the U.S. Wage and Hour Division.
The injury or illness needs to fall into one of the following categories, as well, according to the U.S. Wage and Hour Division.
- It needs to be "a continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank or rating.
- It needs to be "a physical or mental condition for which the veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and the need for military caregiver leave is related to that condition.
- It needs to be "a physical or mental condition that substantially impairs the veteran’s ability to work because of a disability or disabilities related to military service, or would do so absent treatment.
- It needs to "an injury that is the basis for the veteran’s enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers."
Which employees are covered by military caregiver leave?
Employees who are eligible for military caregiver leave are the caregivers for covered veterans. Again, this refers to the spouse, son, daughter, parent or “next of kin” of a covered veteran. Specifically, the “next of kin” of a covered veteran refers to the nearest blood relative, besides the covered veteran’s spouse, son, daughter or parent in the following order of priority:
- A blood relative who the servicemember has been designated (in writing) as the next of kin for FMLA purposes
- A blood relative who has been granted legal custody of the servicemember
- Brothers and sisters
- Aunts and uncles
- First cousins
"When the veteran designates in writing a blood relative as next of kin for FMLA purposes, that individual is deemed to be the veteran’s only FMLA next of kin; when the veteran has not designated in writing a next of kin for FMLA purposes, and there are multiple family members with the same level of relationship to the veteran, all such family members are considered the veteran’s next of kin and may take FMLA leave to provide care to the veteran," according to the U.S. Wage and Hour Division. "For example, if the veteran has three siblings and has not designated a blood relative to provide care, all three siblings would be considered the veteran’s next of kin. Alternatively, where the veteran has one or more siblings and designates a cousin as his or her next of kin for FMLA purposes, then only the designated cousin is eligible as the veteran’s next of kin."
Can an employer deny military leave?
An employer cannot deny military leave. In fact, it is considered unlawful for an employer to interfere with, restrain or deny the exercise of — or even the attempt to exercise — any right that the FMLA provides.
That said, an employer may indeed require that an employee show a certification in order to take leave to care for a veteran. This kind of certification must be completed by an authorized health care provider, such as a United States Department of Defense (“DOD”) health care provider, a United States Department of Veterans Affairs (“VA”) health care provider, a DOD TRICARE network authorized private health care provider, a DOD non-network TRICARE authorized private health care provider or a non-military-affiliated health care provider (though an employer may as for a second and third opion of a covered veteran's serious injury or illness if a non-military-affiliated health care provider gives the certification).
An employee may also submit a copy of a VASRD rating determination or enrollment documentation from the VA Program of Comprehensive Assistance for Family Caregivers — this documentation is considered sufficient, whether or not the employee is named the caregiver. Still, the employee may be required to provide confirmation of their family relationship and documentation of the veteran's discharge date and status for a complete certification, according to the U.S. Wage and Hour Division.
1. Can military caregiver leave be taken intermittently?
Yes, military caregiver leave can be taken intermittently, but it has to be within a 12-month period, starting on the first day that the employee takes this leave. It's also important to note that military caregiver leave can only be used once per servicemember per injury or illness within that 12-month period.
2. Can active duty military take FMLA?
Eligible employees may also take FMLA leave for a "qualifying exigency" while the military member is on covered active duty, is called to covered active duty status or has been notified of an impending call to covered active duty.
3. How long can you be on military leave?
Military caregiver leave begins on the first day that the employee takes this leave and ends 12 months later, regardless of the 12-month period established by the employer. That employee has a combined total of 26 workweeks of leave for any FLMA-qualifying reasons during the single 12-month period — and up to 12 of those 26 weeks may be for an FLMA-qualifying reason other than military caregiver leave.
4. Is military caregiver leave paid or unpaid?
Military caregiver leave is unpaid, though although eligible employees may also use sick leave and vacation time for some of the time that they are on Military Caregiver Leave. While there are no federal legal requirements for paid sick leave, and employers have no obligations to provide employees paid or unpaid vacation time, many employers do pay for this time.
AnnaMarie Houlis is a feminist, a freelance journalist and an adventure aficionado with an affinity for impulsive solo travel. She spends her days writing about women’s empowerment from around the world. You can follow her work on her blog, HerReport.org, and follow her journeys on Instagram @her_report, Twitter @herreportand Facebook.