Military Family Leave

What rights do military family leave laws provide?

Federal law provides up to 26 weeks of unpaid leave in a 12-month period to certain employees whose spouse, child, parent, or next of kin is a covered service member recovering from a serious illness or injury sustained in the line of duty. Additionally, federal law provides certain employees with the right to take up to 12 weeks of unpaid leave from work because of “any qualifying exigency” arising out of the fact that a spouse, child, or parent is on active duty or has been called to active duty in support of a contingency operation. The federal law is contained in the Family and Medical Leave Act (FMLA). If you qualify for a military family leave under this law, your employer:

may not fire you for taking the amount of leave provided by the law;
must give you back the same or equivalent job (same pay, benefits, and working conditions) after you return to work; and
must continue to pay for your health insurance benefits (if you have them) during your leave.

Family and medical leave laws also make it illegal for your employer to interfere with your right to take a military family leave, to harass you for taking a military family leave, to deny a valid leave request, or to refuse to hire or promote you because you have taken or will take a military family leave. It is also illegal for your employer to retaliate against you for requesting a military family leave or for complaining about a violation of law.

Are you covered under FMLA for military family leave?

You must meet all of the following conditions to be covered by the family and medical leave laws:

You have worked for your employer for at least 12 months (even on a part-time or temporary basis);
You have worked at least 1,250 hours (an average of 25 hours per week) during the 12 months before the leave;
Your employer employs at least 50 people within a 75-mile radius of your worksite; and
You need time off from work to address a matter arising out of the fact that a spouse, child, or parent is on active duty or has been called to active duty OR to take care of a spouse, child, parent, or next of kin recovering from a serious illness or injury sustained in the line of duty.

What do the FMLA terms concerning military family leave mean?

Active Duty – under a call or order to active duty
Contingency Operation – a military operation that is designated by the Secretary of Defense as an operation in which members of the Armed Forced are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force. A contigency operation also includes any military operation that results in the call or order to duty of members of the Armed Forces.
Covered Service Member – a member of the Armed Forces, including a member of the National Guard or Reserves or a retired member called to active duty, who is undergoing medical treatment, recuperation, or therapy, or is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
Outpatient Status – status of a member of the Armed Forces assigned to a military medical treatment facility as an outpatient, or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.
Next of Kin – nearest blood relative of a covered service member. If a service member has designated in writing that a specific blood relative is their next of kin, then that is the only blood relative who is next of kin for purposes of military caregiver leave. If no such designation has been made, the service member may have multiple blood relatives who are considered to be next of kin.
Serious Injury or Illness – an injury or illness incurred by a service member in line of duty in the Armed Forces, or previously existing injury aggravated by service in the line of duty, that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.

What types of care are covered under FMLA for military family leave?

Military Caregiver Leave 

The military family leave law recognizes that you may be needed to provide physical or psychological care, or both. For example, you may take military family leave when you need to provide physical care for a service member with a serious injury or illness (such as bathing, administering medication, feeding, or transporting to the doctor when the service member is unable to take care of these needs on their own) or if a doctor determines that your psychological comfort or reassurance to a family member would be beneficial (such as staying with a family member who is undergoing surgery). You may also take leave when you need to arrange changes in care or to fill in for others who are caring for the family member. 

Leave for a Qualifying Exigency 

You will also be able to take leave because of any “qualifying exigency” arising from a qualifying family member’s active duty or call to active duty.  Qualifying exigencies include:

Leave for up to 7 days to address any issue arising out of a qualified family member’s short-notice deployment
Attendance at military events and related activities, such as official ceremonies; family support or assistance programs; and informational briefings sponsored by the military, military service organizations, or the American Red Cross
Certain childcare and school activities, such as arranging for child care when a qualified family member’s call to active duty requires a change in existing arrangements, or attending meetings with school officials or counselors
Certain activities arising from the military member’s covered active duty related to care of the military member’s parent who is incapable of self-care, such as arranging for alternative care, providing urgent care, admitting or transferring to a new care facility, or attending meetings at a care facility
Making or updating financial or legal arrangements to address a covered family member’s call to active duty
Attending counseling for yourself, a covered military member, or the military member’s child
Leave for up to 15 days to spend time with a covered military member who is on short-term rest and recuperation leave during deployment
Attending post-deployment activities, such as arrival ceremonies, reintegration briefings, or issues arising out of the death of a covered military member while on active duty status

What are your employer’s obligations in notifying you of your military family leave rights?

An employer that is covered by FMLA (employs 50 or more employees) must do the following:

Post a notice explaining rights and responsibilities concerning military family leave under FMLA;
Provide detailed, written information about these rights and responsibilities to any eligible employee who gives notice of the need for leave;
Include employees’ rights and responsibilities concerning the military family leave in the employee handbook, if the employer has one; and
Designate a leave, whether the employee is paid or unpaid, as one covered by FMLA and notify the employee of this designation.

If your employer has not notified you of your military family leave rights and you believe your employer is covered under the federal family/medical leave laws, ask your employer for information about these rights.

What are the terms of a military family leave?

Military family leave covered under the family medical leave law is unpaid unless another form of paid leave is used in conjunction with the leave (for example, sick time or vacation time).

In most cases, you must be reinstated to the same or equivalent position after your leave. You are not entitled to be reinstated if your job was eliminated during the leave for legitimate business reasons unrelated to your taking leave.

If you receive health insurance benefits, your employer must continue to pay for them during your leave. This includes any benefits you receive for your dependents or family members.

If you fail to return to work after leave, your employer may recover from you the cost of continuing your health care benefits during your leave, unless the reason you cannot return is beyond your control (for example, the service member continues to require your care).

Are you required to notify your employer that you need to take military family leave?

You must give your employer notice 30 days before taking a military family leave that is foreseeable, such as for major surgery scheduled in advance or attendance at military events. If you need leave suddenly to care for a service member or for a qualifying exigency, you must tell your employer as soon as possible, usually within a couple days. You should notify your employer in writing of your need for military family leave, and make sure to have documentation of your employer’s response.

If you are taking leave for military caregiving, you are not required to disclose to your employer the service member’s diagnosis, but you must give your employer enough information to understand that you are needed to care for a service member who has a serious injury or illness. If you are taking leave for a qualifying exigency, you must give your employer enough facts to determine the type of qualifying exigency.

Be sure you understand your employer’s rules for military family leave before you take leave. Also, ask your employer for written information about your rights and responsibilities for military family leave.

What information may your employer request about your leave?

If you take military family leave for either military caregiving or a qualifying exigency, your employer is allowed to request certain information from you. If you are taking leave for a military caregiving, your employer may ask for:

documentation of your relationship to the military member
medical certification from a Department of Defense healthcare provider, Department of Veterans Affairs healthcare provider, or an authorized network or non-network Department of Defense TRICARE private healthcare provider

If you are taking leave for a qualifying exigency, your employer may:

ask for a copy of the military member’s active duty orders
ask for copies of documents confirming appointments with third parties or bills for services
call a third party with whom you have an appointment to verify the appointment and the nature of the meeting

Can you take intermittent or part-time leave?

You may take military family leave on an intermittent or part-time work schedule when the service member’s care is best accommodated through an intermittent or part-time work schedule. You may take intermittent leave not only where the service member’s need for care is intermittent (for monthly counseling, for example), but also where you are needed only intermittently (such as when sharing care responsibilities with others). If you need intermittent leave or a reduced work schedule, you must attempt to arrange a schedule with your employer that minimizes disruption of your employer’s operations, but still meets your family member’s need for care as determined by the healthcare provider. Your employer may temporarily transfer you to an alternative position with equivalent pay and benefits if that position better accommodates your need for intermittent leave. Your employer cannot make you take more leave than is medically necessary to care for your family member, nor transfer you to a different position to punish you for taking leave (by transferring you to the late night shift, for example). Once you no longer need a reduced schedule, your employer must reinstate you to the same or equivalent position that you held before taking intermittent leave.

How does military family leave relate to other kinds of leave?

Vacation/Personal Leave/Sick Time 

Either you or your employer may choose to apply any accrued paid vacation or personal leave during your leave to care for a service member or for qualifying exigencies arising out of the service member’s call to active duty. Application of this time will run concurrently with your FMLA leave. 

Paid Family Leave 

Paid Family Leave entitles employees who participate in the State Disability Insurance system to receive a maximum of eight weeks of partial pay each year when they take off work to care for a child, spouse, parent, registered domestic partner, grandparent, grandchild, sibling, or parent-in-law with a serious health condition. . 

A “serious health condition” is different from a “serious injury or illness,” but the terms do overlap. Serious health condition means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential health care facility, or continuing treatment by a healthcare provider. An employee can receive Paid Family Leave benefits while taking military family leave so long as (1) the employee is caring for a service member who has a serious health condition and (2) the service member is a qualifying family member. Employees who are not eligible for job-protected military family leave may still be eligible to receive Paid Family Leave benefits if they pay into State Disability Insurance and must miss work to care for a child, spouse, or parent.  All employees who pay into SDI are eligible to receive Paid Family Leave benefits, regardless of the size of the employer or length of employment. 

Kin Care 

Employers who provide sick leave to their employees must allow employees to use at least half of their annual sick leave time to care for a child, spouse, domestic partner, or parent.  If you qualify for sick leave, you can use this time to care for these family members and your employer cannot discipline you for taking this needed time off. 

Leave Specified by Contract 

The family/medical leave law establishes the minimum military family leave rights. If your employer provides greater military family leave benefits under a union contract, other contract, policy, or practice, you are entitled to the more generous benefits. 

Compensatory (“Comp”) Time 

Your employer may not require you to substitute comp time off for unpaid military family leave.

Where can I get help regarding my family/medical leave rights?

For information about the application of military family leave rights to your particular situation, contact the Work and Family Project of Legal Aid at Work toll-free at (800) 880-8047.  The Project can help you to understand what your rights are, how to exercise your rights, and what to do if your rights are violated. If you think your employer has violated military family leave laws, you can file a complaint with your local office of the United States Department of Labor, Wage and Hour Division no later than two years after the earliest discriminatory act (check the U.S. Government listing at the front of your local telephone directory). If you sue your employer for violating the family medical leave law, the court may reinstate you to your job and award you wages you should have been paid or a promotion you should have received as well as reimbursement for legal costs. Time limits apply. You should take action immediately if you think your rights have been violated.

DISCLAIMER

This Fact Sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent changes and differing interpretations, Legal Aid at Work cannot ensure the information in this Fact Sheet is current nor be responsible for any use of it. Do not rely on this information without consulting an attorney or appropriate agency about your rights in your particular situation.