Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 1

I love summer in Michigan.  The sun, the warmth, I get to get my bike out and cruise down the by ways, . . .  oh and the summer associates.  Yep we have a new crop so eager young summer associates here at good old WN+J.  And you know what that means? Of course you don’t so I will tell you.  That means lazy old guys like me get to have eager young law students do their non-billable work for them.  Fortunately, for you and for me we have some really brilliant young people here this summer.  Let me introduce you to one.  His name is Jarrod H. Trombley.  Jarrod is a law student at the University of Michigan where he is a Dean’s Scholar.  Pretty impressive right?  Jarrod was kind enough to write a bunch of posts for me and did a great job.  Here is the first:

This is the last series of posts about when eligible employees qualify for leave. We’re still on the topic of leave in relationship to servicemembers, but this time we are talking about leave to care for seriously injured or ill servicemembers. Let’s look back at the 6 basic reasons why an eligible employee must be granted leave:

(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)

Now in 6, we can see that eligible employees get leave to care for covered servicemembers if those servicemembers are seriously injured or ill as long as the employee falls into a certain category of relationship with the servicemember. But this leaves us with a lot of questions. Who is a covered servicemember? What injuries and illnesses are considered serious? What types of relationships are qualified? And how long can these eligible employees take leave? Let’s break it down.

A covered servicemember can mean either:

(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. Outpatient status means the status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.

29 CFR § 825.127(b)


(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. An eligible employee must commence leave to care for a covered veteran within five years of the veteran’s active duty service, but the single 12-month period described in paragraph (e)(1) of this section may extend beyond the five-year period.

29 CFR § 825.127(b)

Okay, so it means that a covered servicemember includes a person receiving treatment for a serious illness or injury, if that person is either 1) a current member of the Armed Forces or 2) a veteran of the Armed forces who was discharged or released within the 5 years before the eligible employee chooses to take leave. Additionally, to be considered “covered” the servicemember has to have a serious injury or illness. We will talk about what that means next time.