Why? Military Family Leave . . . . Part 1.

More why employees can take a leave.  Let’s go back to the why just to refresh our recollection.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

So we have covered 1, 2, 3, and 4.  Now let’s talk about the so called Military Family Leave.  As you can see, an employee can also take leave for certain military issues for their family. An employee under these sections can take FMLA leave for 2 main reasons:  A qualifying exigency; and to care for a “covered servicemember”.  OK what does that all mean?  Let’s start with some definitions.

(a) Covered servicemember means: (1) 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

(2)  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. See §825.127(b)(2).

29 CFR §825.122(a)(1 & 2).

Simple enough, a covered service member is a person who is in the Armed Forces (including the National Guard or Reserves) who is undergoing treatment for a serious injury or illness or if you are a veteran who was discharged 5 years ago or less and is undergoing treatment for a serious health condition.

That’s one down, now about a spouse.  This was way more complicated before the Supreme Court recognized same sex marriage as a right.  Now, it is just somebody you are legally married to.  29 CFR §825.122(b).  Parent is equally simple it is a parent, step-parent, adoptive parent, foster patent or any individual who stood in loco parentis to the employee.  Loco parentis for those of you that don’t know means somebody who stood in the place of your parent, like grandma, if grandma raised you.  29 CFR §825.122(c).  Son or Daughter is the same, son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.  29 CFR §825.122(d).  Incapable of self-care and physical or mental disability mean that the individual requires active assistance to provide daily self-care and that the individual has a physical or mental impairment that substantially limits on or more major life activities as defined in the ADA.  29 CFR §825.122(d)(1-3).