Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 4

OK another from Jarrod.  I’m really digging having this summer help.  And you need to pay attention here.  While we all really hope that this is not a type of leave that will come along very often in our workplaces, the amount of leave that an employee can take and the 12 month period we use to measure that leave are different from the normal 12 weeks and from the rolling 12 month period that I bet most of you use.

Because we now understand which eligible employees are qualified for leave to care for a servicemember, we can turn to how long those employees may take leave.

(e) An eligible employee is entitled to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness during a single 12-month period.

29 CFR § 825.127(e)

Well that is easy to understand, but it still leaves us with a lot of questions. For example, when does that 12-month period start? And what if the employee doesn’t use all the 26 weeks?

(1) The single 12-month period described in paragraph (e) of this section begins on the first day the eligible employee takes FMLA leave to care for a covered servicemember and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. If an eligible employee does not take all of his or her 26 workweeks of leave entitlement to care for a covered servicemember during this single 12-month period, the remaining part of his or her 26 workweeks of leave entitlement to care for the covered servicemember is forfeited.

29 CFR § 825.127(e)

That answers both of those questions, 12 months from the date the employee starts FMLA leave and any unused workweeks are forfeited. But what if the employee cares for more than one servicemember, or what if that servicemember is subsequently seriously injured or acquires another serious illness?

(2) The leave entitlement described in paragraph (e) of this section is to be applied on a per-covered-servicemember, per-injury basis such that an eligible employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember with a subsequent serious injury or illness, except that no more than 26 workweeks of leave may be taken within any single 12-month period. An eligible employee may take more than one period of 26 workweeks of leave to care for a covered servicemember with more than one serious injury or illness only when the serious injury or illness is a subsequent serious injury or illness. When an eligible employee takes leave to care for more than one covered servicemember or for a subsequent serious injury or illness of the same covered servicemember, and the single 12-month periods corresponding to the different military caregiver leave entitlements overlap, the employee is limited to taking no more than 26 workweeks of leave in each single 12-month period.

29 CFR § 825.127(e)

So regardless of the number of servicemembers cared for or subsequent injuries or illness, a single employee is still only entitled to take 26 workweeks of leave in one 12-month period. However, they may be entitled to take additional leave in subsequent 12-month periods due to care for other service members or subsequent injuries or illnesses. Now how does this interact with other, unrelated leave that an eligible employee is qualified to take under the FMLA?

(3) An eligible employee is entitled to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the single 12-month period described in paragraph (e) of this section, provided that the employee is entitled to no more than 12 workweeks of leave for one or more of the following: because of the birth of a son or daughter of the employee and in order to care for such son or daughter; because of the placement of a son or daughter with the employee for adoption or foster care; in order to care for the spouse, son, daughter, or parent with a serious health condition; because of the employee’s own serious health condition; or because of a qualifying exigency. Thus, for example, an eligible employee may, during the single 12-month period, take 16 workweeks of FMLA leave to care for a covered servicemember and 10 workweeks of FMLA leave to care for a newborn child. However, the employee may not take more than 12 weeks of FMLA leave to care for the newborn child during the single 12-month period, even if the employee takes fewer than 14 workweeks of FMLA leave to care for a covered servicemember.

29 CFR § 825.127(e)

Clear right . . . yea, clear as mud.  So let’s go over that again:  An employee is only eligible for a maximum of 26 workweeks of FMLA leave in a 12-month period, even if they are entitled to leave for reasons other than to care for a servicemember. Further, the employee can only take up to 12 weeks of FMLA leave for reasons not related to caring for the servicemember, and the remaining period of the 26 weeks must be used to care for the servicemember.