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Military Leave (USERRA)

FMLA-Covered Military Leave

Eligible employees are entitled to two types of military family leave under the Family and Medical Leave Act (FMLA), referred to as qualifying exigency leave and military caregiver leave.

Qualifying exigency leave
Employees can use up to 12 workweeks of FMLA job-protected leave for any qualifying exigency because the employee’s spouse, child or parent is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Regular Armed Forces (including the National Guard and Reserves) to a foreign country.

The FMLA regulations list nine kinds of qualifying exigencies that are permitted for FMLA leave:

Short-notice deployment: leave to address any issue that arises from an impending call or order to covered active duty seven days or less before the date of deployment
Military events and related activities: leave to attend any military ceremony, program or event related to covered active duty or the call to covered active-duty status or to attend certain family support or assistance programs and informational briefings
Child care and school activities: leave to arrange or provide for child care or school-related activities
Financial and legal arrangements: leave to make or update various financial or legal arrangements
Counseling: leave to attend counseling (by someone other than a healthcare provider) as a result of active duty or call to active duty status
Rest and recuperation: leave to spend time with a covered military member who is on short-term, temporary, rest-and-recuperation leave during deployment (up to 15 days)
Post-deployment activities: leave to attend arrival ceremonies (including funeral or memorial services), reintegration briefings and events, and any other official ceremony or program sponsored by the military for 90 days after active-duty status
Parental care: leave to care for a covered military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty
Additional activities: leave to address other events arising from military duty agreed upon by the employer and employee
Military caregiver leave
Eligible employees can also use up to 26 workweeks of unpaid leave to care for a spouse, child, parent or next of kin who is a current service member of the Armed Forces (including the National Guard and Reserves) or a covered veteran who is undergoing medical treatment, recuperation or therapy, is in outpatient status or on a temporary disability retired list for a serious injury or illness.

The FMLA definition of “serious injury or illness” for current service members and veterans are distinct from the FMLA definition of “serious health condition.” “Next of kin” is defined as the nearest blood relative.

This 26-workweek leave is only available during a single 12-month period, and an employee is entitled only to a combined total of 26 workweeks of leave (even if the employee is entitled to leave for another FMLA-qualifying event). Spouses employed by the same employer are entitled to leave for a combined total of 26 workweeks in a 12-month period.

How to Handle Military Certifications

The first time that an employee requests qualifying exigency leave, you may require a copy of the covered military member’s active duty orders or other military documentation to support the qualifying exigency. It’s also acceptable to have the employee complete an appropriate certification form outlining the details of such leave.

When leave is taken to care for a covered service member/veteran with a serious injury or illness, you also may request a medical certification completed by an authorized health care provider of the covered service member/veteran. Keep in mind, however, that you’re not permitted to require second or third medical opinions.

When requiring military/medical certification, be sure to give your employee the certification form within five business days after learning about his or her need for leave, and allow the employee at least 15 days to return it.

USERRA and Military Leave

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is the primary federal law governing the employment and reemployment rights of all uniformed service members.

In general, USERRA requires you to provide employees with leave to serve in the military, as well as reinstating employees returning from military leave, granting seniority and applicable benefits to returning members, and training or otherwise qualifying employees returning from military duty.

In addition to granting military leave and reemployment rights, USERRA prohibits discrimination on the basis of service in the uniformed services. Under USERRA, you may not discriminate with regard to hiring, promotion, reemployment, termination or benefits because of past, current or future military obligations. These provisions protect not only past and current members of any of the branches of the uniformed services but also current employees applying to the services and job applicants.

In general, if an employee has been absent from employment to serve in the uniformed services, he or she is eligible for reemployment under USERRA if:

You had notice of the impending service
The employee had no more than five years of total absences from the employer for all military service
The employee was not separated from service with a disqualifying discharge or under other than honorable conditions
The employee promptly returned to work or applied for reemployment

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