Family And Medical Leave Act (FMLA) Military Leave Entitlements

The 2008 National Defense Authorization Act amended the FMLA to allow eligible employees to take up to 12 workweeks of job-protected leave for any “qualifying exigency” arising from the active duty or call to active duty status of a spouse, son, daughter, or parent. The NDAA also allows eligible employees to take up to 26 weeks of job-protected leave to care for a covered servicemember with a serious injury or illness.

What Employers Are Covered By The FMLA?

The FMLA applies to public agencies, schools, and private employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Determining whether your employer is covered by the FMLA can be complicated and if you are concerned about whether your FMLA rights have been violated you should consult with an FMLA lawyer.

What Employees Are Eligible For FMLA Benefits?

Employees are typically eligible for FMLA benefits if they have work for a covered employer for at least 12 months, have worked at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

Military Family Leave Entitlements

Military Caregiver Leave: A covered employer must allow an eligible employee who is a spouse, son, daughter, parent, or next of kin of a covered servicemember who has suffered a serious injury or illness up to 26 weeks of leave (unpaid) to care for the servicemember. Employees are limited to a combined total of 26 weeks of leave for any FMLA-qualifying reason during a single 12-month period. Since normal FMLA leave only allows 12 weeks of leave, only 12 of the 26 weeks total may be for a FMLA-qualifying reason other than the care for a covered servicemember.

Qualifying Exigency Leave: Covered employers must allow eligible employees up to 12 weeks of unpaid leave for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty, or has been notified of an impending call or order to active duty, in support of a contingency operation. Qualifying exigency leave is available to a family member of a military member in the National Guard or Reserves but does not extend to family members of military members in the Regular Armed Forces.

Employee FMLA Notice Requirements

Employees seeking military caregiver leave must provide 30 days advance notice, if possible. If 30 days advance notice is not practicable, the employee must provide notice as soon as practicable.  Similarly, an employee must provide notice of the need for foreseeable leave due to a qualifying exigency as soon as practicable. When the need for leave is not foreseeable, the employee must provide notice as soon as practicable under the facts and circumstances of his or her case.  Siginificantly, employees do not need to specifically assert rights under or even mention the FMLA, but must simply provide sufficient information to notify the employer of the need for FMLA leave and the expected timing and duration of the leave.

Employer Notice Requirements

Covered employers must post notice in a form approved by the Secretary of Labor explaining the rights and responsibilities under the FMLA.  Employers must also either include this notice in employee handbooks or other written guidance to employees concerning benefits, or distribute a copy to new employees upon hiring.  When an employee requests FMLA leave or the employer learns that leave may be for a FMLA purpose, even if the employee did not specifically request FMLA leave, the employer must notify the employee of eligibility to take FMLA leave.  Employers also must inform employees of their rights and responsibilities under the FMLA, including giving specific written instructions on what is required of the employee. When the employer has sufficient information to conclude that leave is being taken for an FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave. The employer must designate leave that qualifies as both leave to care for a covered servicemember with a serious injury or illness and leave to care for a qualifying family member with a serious health condition as leave to care for a covered servicemember in the first instance. Employers also must notify employees of the number of hours, days, or weeks that will be counted against their FMLA entitlement.

Certification Requirements

Employers may require that employees support their  request for leave by an appropriate certification, such as a copy of the covered military employee's active duty orders and othe documentation showing the particular qualifying exigency for which leave is sought. Certification may also include documentation completed by a health care provider or copies of an Invitational Travel Order (ITO) or Invitational Travel Authorization (ITA) issued to any member of the covered servicemember's family.

Enforcement Of FMLA Rights

Employers may not interfere with, restrain, or deny the exercise of rights granted by the FMLA, or discharge or retaliate against any individual for exercising such rights or opposing any unlawful practice under the FMLA. If you believe your FMLA rights have been violated by an Arizona employer, you should discuss your situation with an Arizona employment lawyer as soon as possible.