FMLA Military Caregiver Leave: 26 Weeks, Eligibility, and Certification

If you care for a servicemember or recent veteran with a serious service-connected injury or illness, FMLA military caregiver leave gives you up to 26 workweeks of unpaid, job-protected leave in a single 12-month period. That is more than double the standard 12-week FMLA entitlement, and it reflects the longer recoveries that often follow combat and other service-related conditions. The leave covers active-duty members of every branch, including the National Guard and Reserves, and certain veterans discharged within the past five years.

Who Can Take This Leave

You have to clear the same baseline FMLA thresholds that apply to any other leave under the statute. That means 12 months of employment with your current employer, at least 1,250 hours worked in the 12 months before leave begins, and a worksite where the employer has 50 or more employees within 75 miles.¹ Miss any of those and the 26-week entitlement is off the table, regardless of the servicemember’s situation.

You also have to be the right person to the servicemember. Only a spouse, parent, child, or next of kin can take this leave. Parents include biological, adoptive, step, and foster parents, plus anyone who stood in loco parentis. Parents-in-law don’t qualify.² Children of the servicemember are eligible at any age, whether or not they can care for themselves. That is a departure from the rest of the FMLA, which limits “child” to minors or adult children incapable of self-care.

Next of kin is a category that exists nowhere else in the FMLA. It means the nearest blood relative other than a spouse, parent, or child, following a priority order: anyone with legal custody, then siblings, then grandparents, then aunts and uncles, then first cousins. If the servicemember has designated a specific blood relative in writing, that person is the sole next of kin. Without a written designation, everyone at the same priority level can qualify.

Which Servicemembers and Veterans Are Covered

A current covered servicemember is a member of the Armed Forces, National Guard, or Reserves who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on active duty. The condition has to be one that may render them unfit to perform the duties of their office, grade, rank, or rating.²

Veterans are covered too, but the rules are tighter. The veteran must have been discharged under conditions other than dishonorable within the five years before you first take leave for them. A dishonorable discharge disqualifies them entirely.

What Counts as a Qualifying Condition for a Veteran

For a veteran, the injury or illness must have been incurred or aggravated on active duty and must meet at least one of four criteria:³

It rendered the servicemember unable to perform military duties while still serving and continues after discharge.
The veteran holds a VA Service-Related Disability Rating of at least 50 percent, based at least partly on the condition driving the need for care.
It substantially impairs the veteran’s ability to find or hold a gainful job because of service-related disabilities, or would do so without treatment.
The veteran is enrolled in the VA Program of Comprehensive Assistance for Family Caregivers based on the qualifying injury.

The condition can qualify even if symptoms first appeared after discharge, as long as it traces back to active-duty service.

How the 26 Weeks Actually Work

The 26 workweeks are available during a single 12-month period, and that clock starts on the first day you actually use the leave, not on a calendar year or the employer’s fiscal year.⁴ Any unused balance at the end of that 12 months is gone. Nothing carries over.

The 26 weeks is a combined ceiling for all FMLA leave you take in that 12-month period. If you use 10 weeks for your own medical condition, you have 16 left for caregiving. No more than 12 of the 26 can go toward non-caregiver FMLA reasons like your own serious health condition or a new child.⁴

You can take the leave in one continuous block or intermittently when medically necessary. Usage tracks your actual workweek, so part-time schedules are prorated fairly.

More Than One Servicemember or More Than One Injury

The entitlement is per-servicemember, per-injury. If your sibling suffers a serious injury and later your spouse develops a separate qualifying condition, a fresh 26-week entitlement opens for the second situation. What you cannot do is exceed 26 workweeks in any single 12-month period, even when two entitlements overlap.² Overlapping entitlements stretch the calendar; they do not raise the ceiling.

When Both Spouses Work for the Same Employer

Spouses employed by the same company share a single combined 26-workweek total for military caregiver leave in a 12-month period.⁵ How to divide the weeks is up to the couple, but the employer can enforce the combined cap.

Getting Paid During Leave

The leave itself is unpaid, but you can substitute accrued paid vacation, sick, or personal time to keep income coming in. Your employer can also require you to use up paid leave balances before shifting to unpaid status.⁶ Either way, paid time counts against your 26 weeks; it doesn’t pause them.

If you’re already receiving workers’ compensation or disability benefits tied to the servicemember’s condition, the leave is not “unpaid” for these purposes, and neither you nor your employer can force paid leave to run on top. Once those benefits end, the substitution rules kick back in.⁶

Some states run paid family leave or temporary disability programs of their own. Federal FMLA does not preempt them, and you can take advantage of whichever law gives you more protection.⁷ In practice, state benefits often run concurrently with federal FMLA, keeping a portion of your paycheck intact while your job protection continues.

Certification: What Your Employer Can Require and Contest

Employers will ask for medical certification. Two Department of Labor forms cover most situations: WH-385 for a current servicemember and WH-385-V for a veteran.⁸ The forms cover the provider, the condition, when it began, its expected duration, and, for intermittent leave, how often episodes are likely to occur.

You do not always need a completed WH-385. Employers must accept an Invitational Travel Order or Invitational Travel Authorization issued by the military as sufficient certification for the period it covers, and you don’t have to be the person named on the ITO or ITA, as long as it was issued to a family member.⁹ Enrollment in the VA Program of Comprehensive Assistance for Family Caregivers works the same way, whether or not you’re the named caregiver.

Military caregiver certification is harder for employers to attack than standard FMLA certification. When the form is completed by a DOD, VA, or other military-affiliated healthcare provider, or when leave is supported by an ITO, ITA, or VA Caregiver Program enrollment, your employer cannot demand a second or third medical opinion and cannot require recertification.⁴ If you used a non-military provider, the usual second- and third-opinion rules apply.

An employer can still contact the provider to authenticate the document or clarify handwriting, but the person doing so must be an HR professional, leave administrator, or management official. Your direct supervisor is not permitted to make that call.¹⁰

Notice and the Employer’s Response

Give at least 30 days’ notice when the need for care is foreseeable. When it isn’t, give notice as soon as you reasonably can. Once you request leave, the employer must give you Form WH-381, the Notice of Eligibility and Rights & Responsibilities, telling you whether you meet the basic requirements. You then have 15 calendar days to return the completed certification, and the employer has five business days after receiving it to issue a Designation Notice approving or denying the leave. Treat those deadlines as hard, even if your employer handles them casually.

Health Coverage and Your Job When You Return

Your group health insurance continues on the same terms as if you were working, and you keep paying your share of the premiums. If you normally pay by payroll deduction, arrange another payment method for the unpaid portion of your leave.¹¹ If you don’t return to work, the employer can recoup premiums it paid on your behalf, with exceptions for a continuing serious health condition of you or a covered relative, or circumstances beyond your control such as a layoff.¹²

When leave ends, you’re entitled to your same job or an equivalent one with identical pay, benefits, and working conditions, even if the employer hired a replacement or reshuffled your role.¹³ Seniority and paid-time-off accrual pause during unpaid leave, but everything you had banked before you left has to be there when you come back.¹¹

The Key Employee Exception

There is a narrow carve-out for “key employees,” salaried FMLA-eligible workers among the highest-paid 10 percent within 75 miles. If reinstating you would cause substantial and grievous economic injury to the employer’s operations, reinstatement can be denied. That is a high bar. Ordinary replacement costs and inconvenience don’t count. The employer must tell you of your key-employee status when you request leave and give you a chance to return before formally denying reinstatement.¹⁴

If Your Employer Denies Leave or Retaliates

Employers cannot fire, demote, cut hours, or otherwise retaliate against you for requesting or using this leave. If you believe your rights have been violated, you can file a complaint with the Department of Labor’s Wage and Hour Division online or by calling 1-866-487-9243. If the investigation finds a violation, you can recover back pay for lost wages.¹⁵

You can also file a private lawsuit in federal or state court. The deadline is two years from the last FMLA violation, or three years if the violation was willful, meaning the employer knew or showed reckless disregard for whether its conduct violated the law.¹⁶ Keep copies of every form, email, and notice you exchange with your employer. If a dispute develops later, that paper trail is the most useful thing you can have.

Not the Same as Qualifying Exigency Leave

The FMLA has a separate military family category called qualifying exigency leave, and the two are easy to confuse. Qualifying exigency leave covers logistical needs arising from a family member’s foreign deployment, such as attending military events, arranging childcare, and handling financial or legal matters.¹⁷ It comes out of the standard 12-week FMLA bank, not the 26-week caregiver bank. Military caregiver leave is only for hands-on care of an injured or ill servicemember or veteran, and it gets the full 26 weeks. The two can be used in the same 12-month period, but exigency weeks count against the 12-week cap, not the additional 14 reserved for caregiving.

1
U.S. Department of Labor. Fact Sheet 28 – The Family and Medical Leave Act
2
eCFR. 29 CFR 825.127 – Leave to Care for a Covered Servicemember With a Serious Injury or Illness (Military Caregiver Leave)
3
eCFR. 29 CFR 825.127 – Leave to Care for a Covered Servicemember With a Serious Injury or Illness (Military Caregiver Leave)
4
U.S. Department of Labor. Fact Sheet 28M(a) – Military Caregiver Leave for a Current Servicemember Under the Family and Medical Leave Act
5
U.S. Department of Labor. Fact Sheet 28L – Leave Under the Family and Medical Leave Act for Spouses Working for the Same Employer
6
eCFR. 29 CFR 825.207 – Substitution of Paid Leave
7
U.S. Department of Labor. Fact Sheet 28A – Employee Protections Under the Family and Medical Leave Act
8
U.S. Department of Labor. FMLA Forms
9
eCFR. 29 CFR 825.310 – Certification for Leave Taken to Care for a Covered Servicemember (Military Caregiver Leave)
10
eCFR. 29 CFR 825.307 – Authentication and Clarification of Medical Certification
11
U.S. Department of Labor. FMLA Frequently Asked Questions
12
eCFR. 29 CFR 825.213 – Employer Recovery of Benefit Costs
13
eCFR. 29 CFR 825.214 – Employee Right to Reinstatement
14
U.S. Department of Labor. FMLA Advisor – Key Employees
15
Worker.gov. Filing a Complaint With the U.S. Department of Labor Wage and Hour Division
16
U.S. Department of Labor. FMLA Advisor – Enforcement of the FMLA
17
U.S. Department of Labor. Fact Sheet 28M(c) – Qualifying Exigency Leave Under the Family and Medical Leave Act