Military Leave Under FMLA/CFRA

Purpose

FMLA changes in 2008 provided for two new kinds of leave, known as military exigency leave and military-caregiver leave, which provide FMLA leave for the families of service members called to active duty or injured in the line of duty. The FMLA is enforced by the U.S. Department of Labor. 

This section addresses leave to care for a covered service member with a “serious injury or illness”, and leave due to a qualifying exigency for the family member of a service member. All of the rules and requirements related to the FMLA/CFRA policy apply to this section unless otherwise noted here. 

CFRA added military exigency leave on January 1, 2021. CFRA does not cover military caregiver leave. CFRA is enforced by the California Civil Rights Department. 

Relationship Between FMLA and CFRA

With respect to military caregiver leave, CFRA and FMLA do not necessarily run concurrently. 

Definitions

Military Leave Definitions

Covered Active Duty 

For a member of the Regular Armed Forces, covered active duty or call to covered active duty status means duty during the deployment of the member with the Armed Forces to a foreign country. 

For a member of the Reserve components of the Armed Forces (members of the National Guard and Reserves), covered active duty or call to covered active duty status means duty during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation. 

Covered Service Member 

Includes current members of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness, is in outpatient status, or is on the temporary disability retired list (TDRL) for a serious injury or illness; or a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. 

Covered Veteran 

An individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. 

Next of Kin 

The nearest blood relative of the covered service member, other than the covered service member's spouse, parent, son or daughter, in the following order of priority: blood relatives who have been granted legal custody of the service member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered service member has specifically designated in writing another blood relative as their nearest blood relative for purposes of FMLA military caregiver leave. 

Outpatient Status 

The status of a member of the Armed Forces assigned to 1) a military medical treatment facility as an outpatient; or 2) a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients. 

Serious Injury or Illness

An injury or illness that was incurred in the line of duty and may render the service member medically unfit to perform the duties of their office, grade, rank or rating. Includes injuries or illnesses that existed before the beginning of the member’s active duty and were aggravated by service in the line of duty on active duty in the Armed Forces. 

Military Exigency Leave Definitions

Call to Duty Documentation 

Any available written documentation which supports a need for leave, such as a copy of a meeting announcement for information briefing sponsored by the military, a document confirming an appointment with a counselor or school official, or a copy of a bill for services for the handling of legal or financial affairs. 

Military Member 

Member of the National Guard and Reserves and the Regular Armed Forces during the deployment of the member to a foreign country. 

Family Member 

The employee's spouse, son, daughter or parent on active duty or call to active duty status. A “son or daughter” means the employee’s biological, adopted or foster child, stepchild, legal ward or a child for whom the employee stood in loco parentis, who is on active duty or call to active duty status, and who is of any age. 

For CFRA only, family member also includes registered domestic partner. 

Contingency Operation 

A military operation that 1) 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 2) results in the call or order to, or retention on, active duty of members in the uniformed services under certain statutory provisions, or any other provision of the law during a war or during a national emergency declared by the President or Congress.

Policy

Leave Time

Time Off for Military Caregiver Leave

During a 12-month period, an eligible employee is entitled to a combined total of 26 workweeks of leave when the leave is taken for the serious injury or illness of a covered service member. The 26-week period includes covered service member leave as well as any “regular” FMLA leave events. 

Intermittent Leave

Employees are permitted to take military caregiver leave on an intermittent basis not only where it is medically necessary for the treatment of the service member, but also where the employee is needed only intermittently, such as where other care is available or care responsibilities are shared.

Leave for Covered Service Members for a Qualifying Exigency

The employee is entitled to 12 weeks during a 12-month period when the leave is taken for a “qualifying exigency.” 

Eligibility for Both Leave Types

The employee must meet the 12 months and 1250 hours requirements to be entitled to FMLA or CFRA leave related to covered service members. If the employee would have met the 1250 hours but for intervening military service (National Guard/Reserves), the employee remains eligible for FMLA and/or CFRA. 

The employee must be the spouse, parent, child or next of kin of the covered service member to qualify for Military Caregiver Leave. Next of kin does not pertain to Exigency Leave. 

Certification

For Exigency Leave

The County may require that leave for a qualifying exigency be supported by a copy of the covered military member’s active duty orders and additional supporting certification as related to the particular qualifying exigency for which leave is sought. For Rest and Recuperation leave the employee may be required to provide a copy of the military member’s Rest and Recuperation leave orders, or other documentation issued by the military setting forth the dates of the military member’s leave. 

For Caregiver Leave

The County may request certification of illness or injury. Such certification may be completed by a Department of Defense (DOD) health care provider, a Veterans Health Administration health care provider, a DOD TRICARE network-authorized private health care provider or any health care provider as defined on page 1 of this Policy. Recertification during the time period specified in the documentation is prohibited as are second and third medical opinions in connection with leave requested for this purpose.

The certification may seek information regarding: 

1. Name, address and contact information of the health care provider, and the type of provider; 
2. Whether the covered service member’s injury or illness was incurred in the line of duty on active duty, or whether the injury or illness existed before the beginning of active duty and was aggravated by service in the line of duty on active duty; 
3. The approximate date on which the serious injury or illness commenced, or was aggravated, and its probable duration; 
4. A statement or description of medical facts regarding the service member’s health condition for which FMLA leave is requested:
   1. a) In the case of a current member of the Armed Forces, such medical facts must include information on whether the injury or illness may render the service member medically unfit to perform the duties of their office, grade, rank, or rating, and whether they are receiving medical treatment, recuperation, or therapy; 
   2. b) In the case of a veteran, such medical facts must include information on whether the veteran is receiving treatment for an injury or illness that is the continuation of an injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and rendered them medically unfit to perform the duties of their office, grade, rank, or rating; or information on whether the veteran is receiving medical treatment for a condition for which they received a Veteran’s Affairs Service Related Disability Rating (VASRD) of 50 percent or greater, and that such VASRD rating is based on the condition precipitating the need for military caregiver leave; or information on whether the veteran is receiving treatment for a condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability related to military service; or documentation of enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

ITO or ITA

The County must accept as sufficient certification "invitational travel orders" (ITO) or "invitational travel authorizations" (ITA) issued to any family member to join an injured or ill service member at their bedside. An ITO or ITA is sufficient certification for the duration of time specified in the ITO or ITA. No additional or separate certification may be required. An ITO or ITA is sufficient certification regardless of whether or not the employee is named in the order or authorization. During the specified ITO or ITA time period, an eligible employee may take leave to care for the covered service member in a continuous block of time or on an intermittent basis. The County may seek authentication and clarification of the ITO or ITA. The County may require an employee to provide confirmation of the covered family relationship to the seriously injured or ill service member.

Basis for Leave 

Exigency Leave

1. Short-notice deployment: To address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty in support of a contingency operation seven (7) or less calendar days prior to the date of deployment. Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the 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 of a the military member and/or to attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations or the American Red Cross that are related to the active duty or call to active duty status of the military member. 
3. Childcare and school activities to:
   1. a) Arrange for alternative childcare when the covered active duty or call to covered active duty status of the military member necessitates a change in the existing childcare arrangement for a biological, adopted, or foster child, a stepchild, or a legal ward of a covered military member, or a child for whom a covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence; 
   2. b) Provide childcare on an urgent immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the covered active duty or call to covered active duty status of the military member; 
   3. c) Enroll in or transfer to a new school or day care facility a child of the military member when enrollment or transfer is necessitated by the covered active duty or call to covered active duty status of the military member; or 
   4. d) Attend meetings with staff at a school or a daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors, for a child of the military member when such meetings are necessary due to circumstances arising from the covered active duty or call to covered active duty status of the military member.
4. Financial and legal arrangements to:
   1. a) Make or update financial or legal arrangements to address the military member’s absence while on covered active duty or call to covered active duty status, such as preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust; and 
   2. b) Act as the military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on covered active duty or call to covered active duty status, and for a period of 90 days following the termination of the military member’s covered active duty status.
5. Counseling: To attend counseling provided by someone other than a health care provider for oneself, for the military member, or for the biological, adopted, or foster child, a stepchild, or a legal ward of the military member, or a child for whom the military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence, provided that the need for counseling arises from the covered active duty or call to covered active duty status of the military member. 
6. Rest and recuperation: Eligible employees may take up to fifteen (15) days of leave for each time a military member is on short-term, temporary, Rest and Recuperation leave during the period of deployment.
7. Post-deployment activities to:
   1. a) Attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of ninety (90) days following the termination of the military member’s covered active duty status; or 
   2. b) Address issues that arise from the death of the military member while on covered active duty status, such as meeting and recovering the body of the military member, making funeral arrangements, and attending funeral services.
8. Parental care: To address certain activities related to the care of the military member’s parent who is incapable of self-care. This could include arranging for alternative parental care; providing care on a non-routine, urgent, immediate need basis; admitting or transferring the parent to a new care facility; and attending certain meetings at a care facility or with hospice staff. 
9. Additional activities: To address other events which arise out of the military member’s covered active duty or call to covered active duty status provided that the County and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

Caregiver Leave 

The covered service member must:

1. Have a serious injury or illness; and 
2. Become injured or ill in the line of duty on active duty or have a condition that existed before the beginning of active duty and was aggravated by service in the active duty; and 
3. ​Is receiving medical treatment, recuperation, therapy, is in outpatient status or is on the temporary disability list.

A veteran must have:

1. A serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the service member unable to perform the duties of the service member’s office, grade, rank or rating; or 
2. A physical or mental condition for which the covered veteran has received a VASRD of 50 percent or greater and such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave; or 
3. A physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; or 
4. An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Per Service Member, Per Injury Basis

The 26-week leave entitlement is applied on a per-covered service member, per injury basis. 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 service members or to care for the same service member 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 service member with more than one serious injury or illness only when the serious injury or illness is a subsequent serious injury or illness. This entitlement does not renew annually. 

Husband and Wife Both Employed By the County

A husband and wife who are otherwise eligible to Military Caregiver Leave and who are employed by the County may be limited to a combined total of 26 work weeks of leave during the single 12-month period. 

Designation of Leave

If leave qualifies under both military caregiver leave and FMLA leave, the County must designate the leave as military caregiver leave first. Leave may be retroactively designated as leave to care for a covered service member.

Review 

Every 5 years or sooner if required by law.​