Fact Sheet #28M(b): Military Caregiver Leave for a Veteran under the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) provides workers with job-protected leave from work for family and medical reasons.

This fact sheet explains when workers may use leave to support or care for a family member who is a covered veteran with a serious injury or illness.

ABOUT THE FMLA

The FMLA provides eligible employees of covered employers with job-protected leave for qualifying family and medical reasons and requires continuation of their group health benefits under the same conditions as if they had not taken leave. FMLA leave may be unpaid or used at the same time as employer-provided paid leave. Employees must be restored to the same or virtually identical position when they return to work after FMLA leave.

Eligible employees: Employees are eligible if they:

• Work for a covered employer for at least 12 months,
• Have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and
• Work at a location where the employer has at least 50 employees within 75 miles.

Covered employers: Covered employers under the FMLA include:

• Private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or the previous calendar year,
• Public agencies, including Federal, State, and local government employers, regardless of the number of employees, and
• Local educational agencies, including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees.

The FMLA protects leave for:

• The birth of a child or placement of a child with the employee for adoption or foster care,
• The care for a child, spouse, or parent who has a serious health condition,
• A serious health condition that makes the employee unable to work, and
• Reasons related to a family member’s service in the military, including:
  • Qualifying exigency leave – leave for certain reasons related to a family member’s foreign deployment, and
  • Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness.

For more information about the FMLA generally, see Fact Sheet #28.

MILITARY CAREGIVER LEAVE ENTITLEMENTS

Military caregiver leave allows an eligible employee who is the spouse, child, parent, or “next of kin” of a covered servicemember with a serious injury or illness to use up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to provide care for the servicemember.

A covered servicemember is a current servicemember or a recent veteran. This fact sheet is about caring for a covered veteran under the military caregiver provisions of the FMLA. For more information about caring for a covered current servicemember under the military caregiver provisions of the FMLA, see Fact Sheet #28M(a).

A veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness is a covered veteran if they were a:

• Member of the Armed Forces (including a member of the National Guard or Reserves),
• Discharged or released under conditions other than dishonorable, and
• Discharged within the five-year period before the eligible employee first uses FMLA military caregiver leave to care for them.

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 while 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 while on active duty, and that is either:

• 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, or
• 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, or
• 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 cause impairment absent treatment, or
• An injury that is the basis for the veteran’s enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Any one of these definitions meets the FMLA’s definition of a serious injury or illness for a covered veteran regardless of whether the injury or illness was present before the individual became a veteran or occurred afterward.

NEXT OF KIN

An employee may use military caregiver leave to care for a veteran when the employee is the veteran’s spouse, child, parent, or next of kin.

“Next of kin” means that the employee is the veteran’s nearest blood relative, other than the veteran’s spouse, parent, or child, in the following order of priority:

• All blood relatives who have been granted legal custody of the veteran or, if none,
• All brothers and sisters, or, if none,
• All grandparents, or, if none,
• All aunts and uncles, or, if none,
• All first cousins.

When a 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.

Examples

• Ronnie is a covered veteran who has three siblings and has not designated in writing a blood relative as next of kin for FMLA purposes. All three of Ronnie’s siblings would be considered his next of kin and, if they meet the FMLA eligibility criteria, may take leave to care for him if Ronnie if has a qualifying serious injury or illness. In addition, any of Ronnie’s parents, his spouse, or any of his children, if they meet the FMLA eligibility criteria, may take military caregiver leave to care for him.
• Jordan is a current servicemember who designates in writing a first cousin as her next of kin for FMLA purposes. This first cousin is Jordan’s only next of kin, and, if they are an eligible employee, they may take FMLA leave to care for Jordan if she has a qualifying serious injury or illness. In addition, any of Jordan’s parents, her spouse, or any of her children, if they meet the FMLA eligibility criteria, may take military caregiver leave to care for her.

SINGLE 12-MONTH PERIOD

An eligible employee may take military caregiver leave during a single 12-month period. The single 12-month period for military caregiver leave begins on the first day the employee uses leave for this reason and ends 12 months later, regardless of the 12-month period established by the employer for other FMLA leave reasons. For more information about the 12-month period under the FMLA for other types of FMLA leave, see Fact Sheet 28H.

An eligible employee is limited toa combined total of 26 workweeks of leave for any FMLA- qualifying reasons during the single 12-month period. An eligible employee may use up to 12 of the 26 weeks for an FMLA-qualifying reason other than military caregiver leave, or may use up to 26 weeks of military caregiver leave. For example, if an employee uses 10 weeks of FMLA leave for their own serious health condition during the single 12-month period, the employee has up to 16 weeks of FMLA leave left for military caregiver leave.

Example

• Janya is an eligible employee and uses military caregiver leave to care for her spouse Kendrick, who sustained severe burns that made him unable to perform his military duties when he was a current servicemember, and for which he continues to need care as a veteran. The single 12-month period begins on July 15, the first day Janya needs military caregiver leave and runs from that date to July 15 of the next year. Janya has 26 weeks available to use. Janya uses 20 weeks of FMLA military caregiver leave from July through December and has 6 weeks of FMLA leave remaining.

  Janya uses 2 weeks of FMLA leave in January for her own serious health condition, leaving her with 4 weeks of FMLA leave remaining, which she may use for any FMLA-qualifying reason.

  Military caregiver leave is available to an eligible employee once per veteran, per serious injury or illness. However, an eligible employee may take an additional 26 weeks of leave in a different 12-month period to care for the same veteran if the veteran has a different qualifying serious injury or illness. An eligible employee may also take military caregiver leave to care for more than one current servicemember or covered veteran with a serious injury or illness at the same time, for up to a total of 26 weeks of military caregiver leave in any single 12-month period.

  Additionally, an eligible employee may be able to take military caregiver leave for the same family member with the same serious injury or illness both when the family member is a current servicemember and when the family member is a veteran.

Example

• Two years ago, Mauro took FMLA military caregiver leave to care for his daughter Eva after Eva was injured in the line of duty on active duty when she was in the Armed Forces. As a veteran, Eva is diagnosed with a mental health condition that substantially impairs her ability to work because of a disability related to her military service.

  Mauro is entitled to take an additional 26 weeks of FMLA military caregiver leave in a new single 12-month period to care for Eva as a veteran and take her to treatment.

CERTIFICATION REQUIREMENTS

An employee may be required to provide the employer a certification completed by an authorized health care provider. An employee may submit a copy of a VASRD rating determination or enrollment documentation from the VA Program of Comprehensive Assistance for Family Caregivers to certify that the veteran has a serious injury or illness. This documentation is sufficient regardless of whether the employee is the named caregiver.

However, if the employee submits such documents, the employee may still be required to provide confirmation of family relationship and documentation of discharge date and status for a complete certification. Employees may use the U. S. Department of Labor’s optional form WH- 385-V.

An authorized health care provider may be a:

• United States Department of Defense (DOD) health care provider,
• United States Department of Veterans Affairs (VA) health care provider,
• DOD TRICARE network authorized private health care provider,
• DOD non-network TRICARE authorized private health care provider, or
• Non-military-affiliated health care provider.

If the employee provides certification from a non-military-affiliated health care provider, the employer may request a second or third opinion of the veteran’s serious injury or illness. An employer may not request a second or third opinion when a certification is provided by a military-affiliated health care provider.

ADDITIONAL INFORMATION

For more information about using FMLA leave because of a family member’s military service generally, see Fact Sheet #28M.

ADDITIONAL PROTECTIONS

State Laws

Some States have their own family and medical leave laws. Nothing in the FMLA prevents employees from receiving protections under other laws. Workers have the right to benefit from all the laws that apply.

Protection from Retaliation

The FMLA is a federal worker protection law. Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Any violations of the FMLA or the FMLA regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA. For more information about prohibited employer retaliation under the FMLA, see Fact Sheet #77B and Field Assistance Bulletin 2022-2.

Enforcement

The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. If you believe that your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division or file a private lawsuit against your employer in court. State employees may be subject to certain limitations in pursuit of direct lawsuits regarding leave for their own serious health conditions. Most Federal and certain congressional employees are also covered by the law but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress.