U.S. Department of Labor 

Wage and Hour Division 

 (Revised February 2010) 

Fact Sheet #28A: The Family and Medical Leave Act Military Family Leave 

Entitlements

Notice: On October 28, 2009, the President signed the National Defense Authorization Act for Fiscal Year 

2010 (2010 NDAA), Public Law 111-84. Section 565 of the 2010 NDAA amends the military family leave 

entitlements of the Family and Medical Leave Act (FMLA). These amendments expand coverage for 

“qualifying exigency” leave to eligible employees with covered family members in the Regular Armed Forces 

and coverage for “military caregiver leave” to eligible employees who are the spouse, son, daughter, parent, or 

next of kin of certain veterans with a “serious injury or illness”. On December 21, 2009, the President signed 

the Airline Flight Crew Technical Corrections Act, Public Law 111-119, which modifies the FMLA eligibility 

requirements for flight crew members. This Fact Sheet does not incorporate these amendments to the FMLA. 

The National Defense Authorization Act for Fiscal Year 2008 (2008 NDAA), Public Law 110-181, amended 

the FMLA to allow eligible employees to take up to 12 workweeks of job-protected leave in the applicable 12-

month period for any “qualifying exigency” arising out of the active duty or call to active duty status of a 

spouse, son, daughter, or parent. The 2008 NDAA also amended the FMLA to allow eligible employees to take 

up to 26 workweeks of job-protected leave in a “single 12-month period” to care for a covered servicemember 

with a serious injury or illness. These two types of FMLA leave are known as the military family leave 

entitlements. 

EMPLOYER COVERAGE 

The FMLA applies to all public agencies, including state, local and federal employers, local education agencies 

(schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the 

current or preceding calendar year, including joint employers and successors of covered employers. 

EMPLOYEE ELIGIBILITY 

To be eligible for FMLA benefits, an employee must: 

• work for a covered employer; 

• have worked for the employer for a total of 12 months; 

• have worked at least 1,250 hours over the previous 12 months; and 

• work at a location where at least 50 employees are employed by the employer within 75 miles. 

MILITARY FAMILY LEAVE ENTITLEMENTS 

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Military Caregiver Leave: A covered employer must grant an eligible employee who is a spouse, son, 

daughter, parent, or next of kin of a covered servicemember with a serious injury or illness up to a total of 26 

workweeks of unpaid leave during a “single 12-month period” to care for the servicemember. A covered 

servicemember is a current member of the Armed Forces, including a member of the National Guard or 

Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is 

otherwise on the temporary disability retired list, for a serious injury or illness. A serious injury or illness is one 

that was incurred by a servicemember in the line of duty on active duty that may render the servicemember 
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medically unfit to perform the duties of his or her office, grade, rank, or rating. The “single 12-month period” 

for leave to care for a covered servicemember with a serious injury or illness begins on the first day the 

employee takes leave for this reason and ends 12 months later, regardless of the 12 month period established by 

the employer for other types of FMLA leave. An eligible employee is limited to a combined total of 26 

workweeks of leave for any FMLA-qualifying reason during the “single 12-month period.” (Only 12 of the 26 

weeks total may be for a FMLA-qualifying reason other than to care for a covered servicemember.) 

Qualifying Exigency Leave: A covered employer must grant an eligible employee up to a total of 12 

workweeks of unpaid leave during the normal 12-month period established by the employer for FMLA leave 

for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active 

duty, or has been notified of an impending call or order to active duty, in support of a contingency operation. 

Under the terms of the statute, qualifying exigency leave is available to a family member of a military member 

in the National Guard or Reserves; it does not extend to family members of military members in the Regular 

Armed Forces. 

Qualifying exigencies include: 

• Issue arising from a covered military member’s short notice deployment (i.e., deployment on seven or 

less days of notice) for a period of seven days from the date of notification; 

• Military events and related activities, such as official ceremonies, programs, or events sponsored by the 

military or 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 a covered military member; 

• Certain childcare and related activities arising from the active duty or call to active duty status of a 

covered military member, such as arranging for alternative childcare, providing childcare on a nonroutine, urgent, immediate need basis, enrolling or transferring a child in a new school or day care 

facility, and attending certain meetings at a school or a day care facility if they are necessary due to 

circumstances arising from the active duty or call to active duty of the covered military member; 

• Making or updating financial and legal arrangements to address a covered military member’s absence; 

• Attending counseling provided by someone other than a health care provider for oneself, the covered 

military member, or the child of the covered military member, the need for which arises from the active 

duty or call to active duty status of the covered military member; 

• Taking up to five days of leave to spend time with a covered military member who is on short-term 

temporary, rest and recuperation leave during deployment; 

• Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration 

briefings and events, and other official ceremonies or programs sponsored by the military for a period of 

90 days following the termination of the covered military member’s active duty status, and addressing 

issues arising from the death of a covered military member; 

• Any other event that the employee and employer agree is a qualifying exigency. 

Spouses employed by the same employer are limited to a combined total of 26 workweeks in a “single 12-

month period” if the leave is to care for a covered servicemember with a serious injury or illness, and for the 

birth and care of a newborn child, for placement of a child for adoption or foster care, or to care for a parent 

who has a serious health condition. 

FMLA leave may be taken intermittently whenever medically necessary to care for a covered servicemember 

with a serious injury or illness. FMLA leave also may be taken intermittently for a qualifying exigency arising 

out of the active duty status or call to active duty of a covered military member. When leave is needed for 

planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to 

unduly disrupt the employer’s operation. 
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Under certain conditions, employees or employers may choose to “substitute” (run concurrently) accrued paid

leave (such as sick or vacation leave) to cover some or all of the FMLA leave. An employee’s ability to 

substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy. 

NOTICE REQUIREMENTS 

Employee Notice 

Employees seeking to use military caregiver leave must provide 30 days advance notice of the need to take 

FMLA leave for planned medical treatment for a serious injury or illness of a covered servicemember. If leave 

is foreseeable but 30 days advance notice is not practicable, the employee must provide notice as soon as 

practicable – generally, either the same or next business day. An employee must provide notice of the need for 

foreseeable leave due to a qualifying exigency as soon as practicable. When the need for military family leave 

is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and 

circumstances of the particular case. Generally, it should be practicable to provide notice for unforeseeable 

leave within the time prescribed by the employer’s usual and customary notice requirements. 

An employee does not need to specifically assert his or her rights under the FMLA, or even mention the FMLA, 

when providing notice. The employee must provide “sufficient information” to make the employer aware of the 

need for FMLA leave and the anticipated timing and duration of the leave. Depending on the situation, such 

information may include, as applicable: 

• that the requested leave is for a particular qualifying exigency related to the active duty or call to active 

duty status of a covered military member and the anticipated duration of the leave; 

• that the leave is for a qualifying family member who is a covered servicemember with a serious injury 

or illness and the anticipated duration of the leave. 

When an employee seeks leave due to a FMLA-qualifying reason for which the employer has previously 

provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying 

reason for leave or the need for FMLA leave. 

Employer Notice

Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities 

under the FMLA. Additionally, employers must either include this general notice in employee handbooks or 

other written guidance to employees concerning benefits, or must distribute a copy of the notice to each new 

employee upon hiring. Employers may use the notice prepared by U.S. Department of Labor to meet this 

requirement. 

When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA 

purpose, the employer must notify the employee of his or her eligibility to take leave, including a reason for 

non-eligibility if the employee is determined not to be eligible. Such eligibility notice may be oral or written 

and should, generally, be given within five business days of the request for FMLA leave. Subsequent eligibility 

notice in the same 12-month leave period may be required when an employee’s eligibility status changes. 

Employers also must inform employees of their rights and responsibilities under the FMLA, including giving 

specific written information on what is required of the employee. 

When the employer has enough information to determine that leave is being taken for an FMLA-qualifying 

reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave. 

The employer must designate leave that qualifies as both leave to care for a covered servicemember 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 servicemember in the first instance. The designation notice must be in writing and, 
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generally, must be given within five business days of the determination. An employer also must notify the 

employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA 

entitlement. Employers may use the optional forms WH-381 and WH-382 prepared by the U.S. Department of 

Labor to meet these notification requirements. 

CERTIFICATION REQUIREMENTS 

Employers may require that an employee’s request for military family leave be supported by an appropriate 

certification. An employer may require that: 

• leave for a qualifying exigency be supported by a copy of the covered military member’s active duty 

orders and certification providing the appropriate facts related to the particular qualifying exigency for 

which leave is sought, including contact information if the leave involves meeting with a third party; 

• leave to care for a covered servicemember with a serious injury or illness be supported by a certification 

completed by an authorized health care provider or by a copy of an Invitational Travel Order (ITO) or 

Invitational Travel Authorization (ITA) issued to any member of the covered servicemember’s family. 

Second and third opinions and recertification are not permitted for certification of a covered servicemember’s 

serious injury or illness or of a qualifying exigency. An employer may use a health care provider, a human 

resource professional, a leave administrator, or a management official – but not the employee’s direct 

supervisor – to authenticate or clarify a medical certification of a serious injury or illness, or an ITO or ITA. 

Additionally, an employer may contact the individual or entity named in a certification of leave for a qualifying 

exigency for purposes of verifying the existence and nature of the meeting. Employers may use the optional 

forms WH-384 and WH-385 prepared by the U.S. Department of Labor for obtaining certifications for 

qualifying exigencies and military caregiver leave, respectively. 

UNLAWFUL ACTS 

It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by the 

FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any 

practice, or because of involvement in any proceeding, related to the FMLA. 

ENFORCEMENT 

The Wage and Hour Division investigates complaints. If violations cannot be satisfactorily resolved, the U.S. 

Department of Labor may bring action in court to compel compliance. Individuals may also be able to bring a 

private civil action against an employer for violations. 

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov

and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 

1-866-4-USWAGE (1-866-487-9243). 

This publication is for general information and is not to be considered in the same light as official statements of 

position contained in the regulations. 

U.S. Department of Labor

Frances Perkins Building 

200 Constitution Avenue, NW 

Washington, DC 20210 

1-866-4-USWAGE

 TTY: 1-866-487-9243

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