labor lawAdivision of labor law center

The U.S. Department of Labor recently issued regulations concerning the use of military leave and expanded FMLA leave for military caregivers.

Speaking on the release, Labor Secretary Elaine L. Chao said, “This final rule, for the first time, gives America’s military families special job-protected leave rights to care for brave service men and women who are wounded or injured, and also helps families of members of the National Guard and Reserves manage their affairs when their service member is called up for active duty.” The Secretary added, “At the same time, the final rule provides needed clarity about general FMLA rights and obligations for both workers and employers.”

The new regulations expand the qualifying family members, for military leave purposes. Traditionally, the FMLA or Family and Medical Leave Act has defined an “immediate family member” as a son or daughter, parent or spouse. Sons and daughters were covered only if they were under the age of 18, or unable to care for themselves. Under the military family leave provision of the NDAA, parents of a member of the armed services are entitled to take leave, even if that soldier is over the age of 18. The NDAA also extends military family leave to the adult son or daughter of a service member, and to parents whose son or daughter is called to active duty.

The NDAA or National Defense Authorization Act also permits the soldier’s next of kin to take leave to care for him or her, regardless of what that relationship is. In some cases, this may mean that aunts, uncles, cousins, grandparents or grandchildren or in-laws are entitled to military caregiver leave.

Under the new regulations, the U.S. Department of Labor defines a covered service member as a current member of the Regular Armed forces, National Guard, or Reserve, including those on the temporary disability retired list or TDRL. This does not include former members of the military, or members of the military on the permanent disability retired list.

In a controversial move, service members whose injury or illness manifests itself after the members discharge from military service – as in Gulf War Syndrome – are not covered service members under the NDAA.

In order for family members to qualify for the 26 weeks of unpaid, job-protected FMLA leave for military caregivers, the service member must be receiving treatment by a Department of Defense or Veterans Affairs health care provider, or by a Department of Defense TRICARE authorized private health care provider.

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