What is FMLA military caregiver leave, and who is eligible to take it?

Military caregiver leave was added to the Family and Medical Leave Act (FMLA) in 2010 as an expansion of eligible events for taking FMLA leave. It allows up to 26 weeks of leave in a single 12-month period to be granted to an eligible employee to provide care to an injured covered service member. It provides this leave to a caregiver, not to an employee who is a former service member who would have just the 12 weeks of FMLA leave to use for a qualifying reason. The 26 weeks are inclusive of the 12 weeks of leave already provided under regular FMLA leave. This leave can be used only once per veteran, per injury, and must be used within one 12-month period. Although the leave is unpaid, the employee may use available paid time off to remain in paid status for all or part of the absence. The employee may choose to exhaust available sick and vacation leave, or any portion, or go on leave without pay to care for an injured family member. See U.S. Department of Labor (DOL) guidance here.

FMLA regulation §825.122 defines a covered service member as "a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. Covered veteran means an individual who was a member of the Armed Forces (including a member of the National Guard or Reserves), and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran."

An eligible employee is the spouse, son, daughter, parent or next of kin. "Next of kin" means the nearest blood relative (other than the covered service member's spouse, parent, son or daughter) in the following order of priority:

• Blood relatives who have been granted legal custody of the covered service member by court decree or statutory provisions.
• Brothers and sisters.
• Grandparents.
• Aunts and uncles.
• First cousins.

If the covered service member has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA, then that individual is deemed to be the service member's or veteran's only FMLA next of kin. When no such designation is made, and there are multiple family members with the same level of relationship to the covered service member, all such family members will be considered the covered service member's next of kin and may take FMLA leave to provide care to the covered service member, either consecutively or simultaneously.

Editors' Note: Under the FMLA, a "spouse" means a husband or wife, including those in same-sex marriages, which were made legal in all 50 United States as of June 26, 2015.