Q. One of our employees recently went on military caregiver leave to take care of her injured husband. She is also expected to give birth in the coming weeks. Is she entitled to 12 weeks of leave under the
A. No. The National Defense Authorization Act (NDAA), Public Law 110-181, expanded the FMLA to allow eligible employees to take two new categories of , one of which is military caregiver leave.
The new 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.
The U.S. Department of Labor (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. However, employees are entitled to a combined total maximum of 26 workweeks of caregiver leave and leave for any other FMLA-qualifying reason in that same “single 12-month period.”
Furthermore, a maximum of 12 of those 26 weeks can be used for the other FMLA-qualifying reason.
Assuming your employee has not used any of her 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 particular time period.
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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