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12 weeks? 26? 38? Counting time off when caregiver leave and FMLA overlap

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in Firing,FMLA Guidelines,Human Resources

The FMLA grants 12 weeks of unpaid leave to handle a serious medical condition. Military family caregiver leave rules provide for 26 weeks off. But what happens when an employee can invoke both, for example, when she must care for a wounded military spouse while she is pregnant?

According to the U.S. Department of Labor (DOL), employees are entitled to a combined total maximum of 26 workweeks of caregiver leave and leave for any other FMLA-qualifying reason in the same “single 12-month period.”

The National Defense Authorization Act (Public Law 110-181), enacted in 2008, expanded the FMLA to allow eligible employees to take two new categories of FMLA leave, one of which is military caregiver leave.

The law gives eligible employees a total of 26 workweeks of leave in a single 12-month period to care for a service member who is on the temporary disability retired list, has a serious injury or illness for which he or she is undergoing medical treatment, recuperation or therapy, or is otherwise on outpatient status.

The DOL permits employees to take leave both to care for a service member and for another FMLA-qualifying reason, such as childbirth in the same 12-month period. The maximum leave when an employee can take advantage of both caregiver leave and the FMLA is 26 workweeks in the same “single 12-month period.”

Furthermore, a maximum of 12 of those 26 weeks can be used for the other FMLA-qualifying reason.

Assuming the employee has not used any of FMLA leave yet, she may be entitled to up to 12 weeks of leave for childbirth, but not more than 26 weeks total of leave from the time she went out on caregiver leave.

When making these leave determinations, keep in mind that the “FMLA year” and “caregiver leave” do not always coincide. The “single 12-month period” for caregiver leave starts on the first day the employee takes caregiver leave.

On the other hand, employers have four options for when the FMLA year begins. Depending on which of these four your company uses, employees may be entitled to more or less leave in any calendar year.

Finally, keep in mind that the regulations are different if the other FMLA-qualifying reason for leave is the same as the reason the employee qualifies for caregiver leave. An employee’s reason to take military caregiver leave will typically also qualify as leave to care for a qualifying family member with a serious health condition under the FMLA.

In that case, the DOL requires employers to designate the leave as caregiver leave first: “The employer must designate leave that qualifies as both leave to care for a covered service member with a serious injury or illness and leave to care for a qualifying family member with a serious health condition as leave to care for a covered service member in the first instance.”

Moreover, the DOL prohibits employers from counting such leave as both military caregiver leave and FMLA leave. That would result in the employee depleting his or her FMLA leave after the first 12 weeks of leave.

In this regard, the DOL has stated: “The regulations also prohibit an employer from counting leave that qualifies as both military caregiver leave and leave to care for a family member with a serious health condition against both an employee’s entitlement to 26 workweeks of military caregiver leave and 12 workweeks of leave for other FMLA-qualifying reasons.”
 

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