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FMLA Military Leave Q&A

With the increase of servicemen and women being called to active duty or coming home from active duty injured, we have received several questions about military caregiver leave and have included some of the most often asked questions below:

Q: May an employee take back-to-back military caregiver leave for more than one seriously injured or ill service member?

A: Yes. By regulation, military caregiver leave is a "per-service member, pre-injury" entitlement. Accordingly, an eligible employee may take 26 workweeks of leave to care for one covered service member in a "single 12-month period," and then take another 26 workweeks of leave in a different "single 12-month period" to care for another covered service member. (conceivably, those two leaves could be essentially back to back.)

Q: Can an employee take leave to care for two seriously injured or ill service members at the same time?

A: Yes. However, an eligible employee may not take more than 26 workweeks of leave during each "single 12-month period."

Q: Can an employee take additional military caregiver leave if a covered service member receives a serious injury or illness and then, at a later time, manifests a second serious injury or illness?

A: Yes. Again, the leave is a "per service member, per injury" entitlement. If a covered servicemember incurs a serious injury or illness and manifests a second serious injury or illness at a later time. An eligible employee would be entitled to an additional 26-workweek entitlement to care for the covered servicemember in a separate "single 12-month period."

For example, an eligible employee may take military caregiver leave to care for a covered service member who has suffered a limb amputation in the line of duty on active duty. If that same service member manifests a brain injury a year later arising from the same incident, the employee would be eligible to take another 26 workweeks of military caregiver leave at that time.

However, the covered servicemember must still be a member of the Armed Forces, or the National Guard or Reserves, including those on the temporary disability retired list. The second serious injury or illness must have been incurred in the line of duty on active duty.

Q: Can an employee takes military caregiver leave to care for a service member who is no longer serving in the military? What about for a retired member of the military?

A: No. Former members, including retired members, of the Regular Armed Forces, the National Guard, or the Reserves are not considered "covered servicemembers" under the military caregiver leave provision. Military caregiver leave does cover seriously ill or injured service members on the temporary disability retired list; however, service members on the permanent disability retired list are not covered.