FMLA Guidelines: Covered Servicemember

A covered servicemember is either:

  • 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 in outpatient status, or is on the temporary disability retired list, for a serious injury or illness, or
  • A veteran of the Armed Forces (including the National Guard or Reserves) discharged within the five-year period before the family member first takes military caregiver leave to care for the veteran and who is undergoing medical treatment, recuperation, or therapy for a qualifying serious injury or illness. A veteran who was dishonorably discharged does not meet the FMLA definition of a covered servicemember.

FMLA Guidelines: Serious Injury or Illness

An injury or illness incurred by a covered servicemember in the line of duty while on active duty in the United States Armed Forces that causes the servicemember to be medically unfit to perform the duties of the service member’s office, grade, rank or rating. A serious injury or illness also includes injuries or illnesses that existed before the servicemember’s active duty and that were aggravated by service in the line of duty on active duty.

For a veteran, a serious injury or illness is one that rendered the veteran medically unfit to perform his or her military duties, or an injury or illness that qualifies the veteran for certain benefits from the Department of Veterans Affairs or substantially impairs the veteran’s ability to work. For veterans, it includes injuries or illnesses that were incurred or aggravated during military service but that did not manifest until after the veteran left active duty.

FMLA Guidelines: Next of Kin

The next of kin of a covered servicemember is the nearest blood relative, other than the service member’s spouse, parent or child in the following order of priority:

  • A blood relative who has been designated in writing by the servicemember as the next of kin for FMLA purposes
  • Blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions
  • Siblings
  • Grandparents
  • Aunts and Uncles
  • First cousins.

The service member may specifically designate a blood relative as his or her nearest blood relative. In this circumstance, only the designated next of kin may care for the covered servicemember under the FMLA.

FMLA Guidelines: Qualifying Exigency

Qualifying exigencies include the following:

  1. Short-notice deployment:  Issues that arise from the fact that a covered military member is called to active duty with notice of seven calendar days or less prior to deployment.  Absence can be for a period of seven calendar days beginning on the date a covered military member is notified of an impending call or order to active duty in support of a contingency operation.
  2. Military events and related activities:  To attend any official ceremony, program, or event sponsored by the military that is related to the active duty or call to active duty status, or to attend family support or assistance programs and informational briefings related to the call to active duty or call to active status.
  3. Childcare and school activities:  To arrange for alternative childcare for a child, to provide childcare on an emergency basis, to enroll a child in school or to attend school meetings for the child where the absence is necessitated by the active duty or call to active duty.
  4. Financial and legal arrangements:  To make financial or legal arrangements to address the military member’s absence for military duty or to act as the military member’s representative for purposes of obtaining military service benefits.  Absences can be taken to obtain military service benefits while the military member is away on active duty or within ninety days of termination of active duty.
  5. Counseling:  To attend counseling provided by someone other than a health care provider for the employee, military member, or a child of the military member, provided the need for counseling arises from the active duty or call to active duty status.
  6. Rest and recuperation:  To spend time with a military member who is on a short-term, temporary, rest and recuperation leave during the period of deployment.  Absence is limited to five days for each military rest and recuperation visit.
  7. Post-deployment activities:  To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of ninety days following the termination of the active duty status.
  8. To address issues that arise from the death of a military member while on active duty status.
  9. Additional activities:  To address other events that arise out of the military member’s active duty or call to active duty status provided the employer and employee agree that the absence will qualify as an exigency, and agree to both the timing and duration of the absence.

FMLA Guidelines: Contingency Operation

A military operation that is designated by the Secretary of Defense as an operation in which members of the Armed Forces are or may become involved in military actions, operations or hostilities against an enemy of the United States or against an opposing military force or results in the call or order to, or retention on active duty of members of the Armed Forces during a war or national emergency declared by the President or Congress.