Military Leave Policy -Section VI. Military FMLA Coverage

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Including Uniformed Services Employment & Reemployment Rights Act (USERRA) and the California Military & Veterans Code (CMVA)

Revised: April 2014

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• Qualifying Exigency Leave
• Military Caregiver Leave

When a family member is deployed to a foreign country with the Armed Forces, your life can change very quickly. Many of these changes can require your prompt attention. Even though no one is ill or injured, you may need time away from work to address these issues.

If your spouse, domestic partner, parent, son or daughter is a military member who is deployed or has been notified of an impending deployment to a foreign country, and you work for a covered employer and are an eligible employee, you may be entitled to qualifying exigency leave. Qualifying exigency leave allows you to take up to a total of 12 workweeks of FMLA leave for the following qualifying exigencies:

1. To address any issues arising from the military member’s short-notice deployment (i.e., deployment within seven or less days of notice). You may take leave for up to seven calendar days, beginning on the day the military member receives notice of deployment, to attend to any issue arising from the short-notice deployment.
2. To make or update financial and legal arrangements arising from the military member’s covered active duty. This could include preparing and executing financial and healthcare powers of attorney, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or acting as the military member’s representative in arranging for military service benefits.
3. To attend counseling for yourself, the military member, or the child of the military member, when the need for that counseling arises from the military member’s covered active duty and is provided by someone other than a health care provider.
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4. To attend military events and related activities. These could include official military ceremonies, military programs, family support programs, and/or informational briefings sponsored or promoted by the military or military service organizations that are related to the military member’s covered active duty.
5. To spend up to fifteen calendar days with a military member who is on Rest and Recuperation leave during covered active duty. (Note: You may only use this leave during the military member’s R & R leave.)The Employee’s Guide to Military Family Leave 7
6. To address certain childcare and related activities concerning the military member’s child that arise from the military member’s covered active duty. These could include arranging for alternative childcare; providing childcare on a non-routine, urgent, immediate need basis; enrolling in or transferring a child to a new school or day care facility; and attending certain meetings at a school or a day care facility. This provision allows for the arrangement of alternative childcare. It does not allow you to take leave for routine childcare, such as to become the primary caregiver while the military member is on covered active duty.
   
   Note: You do not need to be related to the military member’s child. But,
   1. the military member must be your spouse, parent or child, and
   2. the child for whom you are taking leave must be the child of the military member.
7. To attend post-deployment activities for up to 90 days following the termination of the military member’s covered active duty, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military, and to address issues arising from the death of a military member, including attending funeral services for the military member.
8. Any other event that you and your employer agree is a qualifying exigency and agree to the timing and duration of the leave.
9. To address certain activities related to the care of the military member’s parent who is incapable of self-care. These could include arranging for alternative parental care; providing care on a non-routine, urgent, immediate need basis; admitting or transferring the parent to a new care facility; and attending certain meetings at a care facility or with hospice staff.
   
   Note: You do not need to be related to the military member’s parent. But,
   
   1. the military member must be your spouse, parent or child, and
   2. the parent for whom you are taking leave must be the parent of the military member.

Certification requirements

If you are requesting leave for a qualifying exigency, please provide:

1. a copy of the military member’s active duty orders (or other official documentation issued by the military) which indicates the military member is on covered active duty or call to covered active duty status;
   
   • You only need to provide a copy of the active duty orders or other appropriate documentation once per deployment.
2. a statement or description of the appropriate facts regarding the qualifying exigency;
   
   • Facts may include information on the type of leave needed and any available written documentation (for example, copy of meeting announcement, appointment confirmation with counselor or school official, copy of bill for legal or financial arrangements, or R & R orders).
3. the approximate date on which the leave began (or will begin) and the estimated duration.
4. the contact information for any third party you are meeting.

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When faced with caring for an injured or seriously ill servicemember or veteran, the FMLA may be able to help ease the burden of worrying about your job during an already troubling time.

If you are the spouse, domestic partner, parent, son, daughter, or next-of-kin of a covered servicemember, you work for a covered employer, and are an eligible employee, you may be entitled to military caregiver leave. Military caregiver leave allows you to take up to a total of 26 workweeks of unpaid leave during a single 12-month period to take care of your military relative if he or she has a qualifying serious injury or illness.

The single 12-month period for leave to care for a covered servicemember (both current servicemembers and veterans) with a serious injury or illness begins on the first day you take leave for this reason and ends 12 months later, regardless of the 12-month period established by your employer for other types of FMLA leave. You are entitled to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the “single 12-month period.” (Up to 12 of the 26 weeks may be for an FMLA-qualifying reason other than to care for a covered servicemember. For example, if you use 10 weeks of FMLA leave for your own serious health condition, you still have up to 16 weeks of FMLA leave left to care for a covered servicemember.)

Military caregiver leave is available to you once per servicemember per serious injury or illness. However, if you take leave to care for your family member when he or she is a current servicemember, you may be able to take another 26 weeks of military caregiver leave, in a different 12-month period, to care for that same family member when he or she becomes a veteran, even if he or she continues to suffer from the same serious injury or illness.

You may take an additional 26 weeks of leave in a different 12-month period to care for the same servicemember if he or she subsequently has a different serious injury or illness. For example, if you take caregiver leave to care for a covered servicemember who sustained severe burns, you may be entitled to an additional 26 weeks of caregiver leave in a different 12-month period if the same servicemember is later diagnosed with a traumatic brain injury that was incurred in the same incident as the burns. It is possible for you to take military caregiver leave to care for more than one servicemember with a serious injury or illness at the same time. In any event you are limited to a total of 26 weeks of military caregiver leave in a 12-month period.

Certification requirements

1. If you request military caregiver leave, please provide:
2. contact information for the authorized health care provider completing the certification, the type of medical practice or specialty, and affiliation with the military, if any;
3. whether the injury or illness was incurred or aggravated by service in the line of duty on active duty, when it began or was aggravated, and its likely duration;
4. a statement of appropriate facts regarding the servicemember’s health condition sufficient to support the need for FMLA leave;
5. information to show that the servicemember needs care and estimates for the period and dates of treatment or recovery needed;
6. if care is needed intermittently or on a reduced schedule, the schedule of treatments or appointments, or an estimate of the frequency and duration of periodic care;
7. your name, the name of the covered servicemember, and your relationship to the servicemember; and
8. information on the servicemember’s branch, rank, and unit assignment or the veteran’s date and type of separation.

If your family member is a current servicemember who needs care, you may present a copy of an Invitational Travel Order (ITO) or Invitational Travel Authorization (ITA) issued to any member of the covered servicemember’s family for certification for the time specified on the ITO/ITA.

If your family member is a veteran with a serious injury or illness, you may provide a copy of a VASRD rating determination or the enrollment notice from the VA’s Program for Comprehensive Assistance for Family Caregivers for certification of the veteran’s serious injury or illness. The enrollment notice may be issued to any member of the veteran’s family. However, you may need to provide additional information to support your leave request. An authorized health care provider may be a DOD, VA, TRICARE network, non-network TRICARE, or non-military-affiliated health care provider. An employer may request a second and third opinion of a covered servicemember’s serious injury or illness only when a certification is provided by a non-military-affiliated health care provider. Recertification is not permitted for a certification for military caregiver leave

Additional rights and responsibilities regarding the FMLA can also be found in the County’s Medical Leave Policy.

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