Yes. Military leave is covered under the FMLA, but only for the families of service members. The Family and Medical Leave Act gives eligible employees up to 12 workweeks of unpaid, job-protected leave when a spouse, child, or parent is deployed to a foreign country, and up to 26 workweeks to care for a family member recovering from a serious service-connected injury or illness.1U.S. Department of Labor. Fact Sheet 28M – Using FMLA Leave Because of a Family Members Military Service The service members themselves are protected by a different federal law.
FMLA Covers the Family, USERRA Covers the Service Member
The confusion is common because both laws deal with military service and civilian employment, but they protect different people. FMLA’s military provisions apply to civilian employees who need time off because someone in their family is serving. The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to the person actually wearing the uniform.
Under USERRA, a person who leaves a civilian job for military service is entitled to reemployment with the same employer as long as the cumulative absence does not exceed five years, with several exceptions for involuntary extensions and certain required service.2Office of the Law Revision Counsel. 38 US Code 4312 – Reemployment Rights of Persons Who Serve in the Uniformed Services USERRA has no minimum hours-of-service requirement and applies to virtually all employers regardless of size. If you are the one deploying, USERRA is your law. If your husband, wife, son, daughter, mother, or father is deploying, FMLA is yours.
Who Qualifies for FMLA Military Leave
Both your employer and you personally have to meet thresholds before FMLA applies.
Covered Employers
Private-sector employers are covered by FMLA if they employ 50 or more workers for at least 20 workweeks in the current or preceding calendar year.3eCFR. 29 CFR 825.104 – Covered Employer All public agencies and all public and private elementary and secondary schools are covered regardless of headcount.4eCFR. 29 CFR Part 825 – The Family and Medical Leave Act of 1993 A small private employer with fewer than 50 employees is not covered.
Eligible Employees
Even at a covered employer, you have to clear three separate requirements:
- You must have worked for the employer for at least 12 months (they do not have to be consecutive).
- You must have logged at least 1,250 hours of actual work during the 12 months before your leave begins.
- Your employer must have at least 50 employees within 75 miles of your worksite.5U.S. Department of Labor. Fact Sheet 28H – 12-Month Period Under the Family and Medical Leave Act
The third one catches people off guard. A national company with thousands of workers can still fall outside FMLA at a particular office if fewer than 50 employees work within a 75-mile radius of that location.
Qualifying Exigency Leave: 12 Weeks for Deployment Fallout
When a spouse, child, or parent is deployed to a foreign country or receives notice of an impending deployment, you can take up to 12 workweeks of leave in a 12-month period to handle the practical consequences.1U.S. Department of Labor. Fact Sheet 28M – Using FMLA Leave Because of a Family Members Military Service The rules cover members of the Regular Armed Forces deploying abroad and National Guard and Reserve members called to active duty in support of a contingency operation. You can use the leave intermittently as issues come up across the deployment cycle rather than taking it in one block.
Federal regulations list the specific categories that count as qualifying exigencies:6eCFR. 29 CFR 825.126 – Leave Because of a Qualifying Exigency
- Short-notice deployment, when the service member gets seven or fewer days’ notice.
- Attending official military ceremonies, family support programs, and informational briefings.
- Arranging childcare and attending school activities when the deployment disrupts existing arrangements.
- Handling financial and legal matters, including wills, powers of attorney, bank accounts, and taxes, and acting as the service member’s representative before government agencies for up to 90 days after active duty ends.
- Spending time with the service member during short-term rest and recuperation leave, for up to 15 calendar days per instance.
- Attending post-deployment ceremonies and reintegration briefings for up to 90 days after active duty ends, and addressing issues arising from a service member’s death.
- Arranging alternative care or handling urgent care for the service member’s parent when the deployment changes an existing care arrangement.
The parental care category is narrower than it sounds. The service member’s parent must need help with three or more daily activities like bathing, dressing, eating, or managing a household, and routine caregiving that existed before the deployment does not qualify.7eCFR. 29 CFR 825.126 – Leave Because of a Qualifying Exigency
Military Caregiver Leave: 26 Weeks for a Serious Injury or Illness
Caregiver leave is the most generous FMLA entitlement in the law: 26 workweeks within a single 12-month period to care for a covered service member with a serious injury or illness.8eCFR. 29 CFR 825.127 – Leave to Care for a Covered Servicemember with a Serious Injury or Illness You qualify if you are the service member’s spouse, child, parent, or next of kin (nearest blood relative). The 26 weeks include any other FMLA leave taken during that same 12-month window, so three weeks used for your own condition would leave 23 weeks for caregiving.
For current members of the Armed Forces (including the National Guard and Reserves), a serious injury or illness is one incurred in the line of duty that may make the service member medically unfit to perform their duties. Pre-existing conditions aggravated by military service also count.8eCFR. 29 CFR 825.127 – Leave to Care for a Covered Servicemember with a Serious Injury or Illness
The definition also reaches veterans discharged under conditions other than dishonorable within the five years before the employee first takes caregiver leave.9eCFR. 29 CFR 825.122 – Definitions of Covered Servicemember, Spouse, Parent, Son or Daughter, Next of Kin For veterans, a qualifying condition includes any serious injury or illness with a VA disability rating of 50 percent or greater, or one that substantially impairs the veteran’s ability to hold a job.
The 26-week period starts on the first day you actually take caregiver leave, and any unused portion does not carry over once the 12-month window closes. You can, however, get a fresh 26-week entitlement in a later period if the same service member develops a different serious injury or illness, or when a current service member transitions to veteran status even if the underlying condition is the same.10U.S. Department of Labor. Military Family Leave Guide The ceiling in any single 12-month period stays at 26 workweeks total, even if you are caring for more than one service member.
Pay and Health Insurance During Leave
FMLA military leave is unpaid by default. You can choose to use accrued vacation, sick leave, or personal time concurrently, and your employer can also require you to use paid leave during the FMLA period.11eCFR. 29 CFR 825.207 – Substitution of Paid Leave Either way, the time runs against your FMLA entitlement at the same time.
Your employer must maintain your group health insurance on the same terms as if you were still working, and you remain responsible for your share of the premium. If your payment is more than 30 days late, the employer can drop coverage after giving you at least 15 days’ written notice.12eCFR. 29 CFR 825.212 – Employee Failure to Pay Health Plan Premium Payments Even if coverage lapses for nonpayment, the employer must restore you to the same plan when you return, with no new waiting periods, medical exams, or pre-existing condition exclusions.
Notice and Certification
When you know about a deployment in advance, give your employer at least 30 days’ notice.13eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave For a short-notice deployment or a sudden medical emergency, notify your employer as soon as you reasonably can. You do not have to mention the FMLA by name, but you do need to give enough information for the employer to recognize the request as military-related.
The Department of Labor publishes certification forms for each type of military leave. Exigency certification asks for the service member’s active duty orders (or other proof of the call to duty), the deployment dates, and a description of the specific exigency. Caregiver certification must be completed by an authorized healthcare provider such as a military physician, VA clinician, or TRICARE-authorized doctor.
If you fail to provide requested certification within 15 calendar days, your employer can deny FMLA protection for that period of leave until the certification arrives.14eCFR. 29 CFR 825.313 – Failure to Provide Certification If your certification is incomplete, the employer must send you a written notice identifying what is missing and give you seven calendar days to fix it. Miss those deadlines and you can lose the protection.
Coming Back to Your Job
When you return, your employer must place you in the same job or one that is virtually identical in pay, benefits, duties, and working conditions.15eCFR. 29 CFR 825.215 – Equivalent Position That means the same shift or schedule, the same worksite or one close enough that your commute does not significantly increase, the same opportunity for overtime and bonuses, and the same level of responsibility. If a license renewal or required training came due while you were out, the employer must give you a reasonable chance to catch up.
You are also entitled to any unconditional pay raises that took effect during your absence, such as cost-of-living adjustments. Benefits resume at the same level as when your leave began, subject to changes that applied to the whole workforce while you were gone. Your employer cannot make you requalify for health insurance, retirement contributions, or other benefits you already had.
If Your Employer Refuses or Retaliates
Federal law prohibits both interference with your right to take leave and retaliation for exercising it.16eCFR. 29 CFR 825.220 – Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights Your employer cannot refuse to authorize FMLA leave, count FMLA absences against you under an attendance policy, use your leave as a negative factor in hiring or promotion decisions, transfer you to manipulate headcounts below the 50-employee threshold, or change your job duties to eliminate the need for your leave. These protections also cover anyone who files a complaint, testifies, or provides information in an FMLA investigation.
If your rights are violated, you can file a complaint with the Department of Labor’s Wage and Hour Division or bring a private lawsuit. The statute of limitations is two years from the date of the last violation, or three years if the violation was willful.17Office of the Law Revision Counsel. 29 US Code 2617 – Enforcement Available remedies include back pay for lost wages and benefits, interest, and liquidated damages equal to the combined total of lost compensation plus interest, which effectively doubles the recovery. A court can reduce the liquidated damages only if the employer proves the violation was made in good faith. Courts can also order reinstatement, promotion, or other equitable relief.