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Am I protected by FMLA to perform military service?

When an Iowan is a close relative to a person who is in the military, the Family and Medical Leave Act has certain provisions that allow a covered employee to use the FMLA leave for issues that are considered qualifying exigencies. This means if it is urgent that a close relative of the employee needs to care for the service member who is suffering from an illness or injury, FMLA is applicable. The close relative must be a son, daughter, parent or next of kin. If there is a violation of this part of FMLA, the person should be aware that it is possible to file a lawsuit against the employer because of it.

An employee who is covered under FMLA can have as much as 12 workweeks of unpaid leave within 12 months. The job will be protected during that time if the close relative is on active duty or has been ordered to covered active duty. It is essential to understand what "covered active duty" entails. It means that the relative is part of the regular Armed Forces and is being deployed to a foreign country or the relative is a Reserve in the Armed Forces or the National Guard and has been called to duty in a foreign country or has been called to active duty to support a contingency operation.

With military caregiver leave, the employer must allow an eligible employee up to 26 workweeks of leave in a 12-month period. This is unpaid and the job is protected. A covered service member will be a person who is currently in the Armed Forces in any capacity including the Reserves and the National Guard and is receiving medical treatment, is recuperating, is receiving therapy, is an outpatient, or has a temporary disability for an illness or serious injury. It can also be a veteran of the Armed Forces who was discharged within the five-year time frame prior to the family member using FMLA taking leave to provide care for the same issues as listed above. If the service member was dishonorably discharged, the relative cannot use FMLA for caregiving.

If a person has a family member in the military service and needs to take time off through FMLA, they can do so provided they qualify for FMLA. When there are FMLA violations in these circumstances, it can be the basis for a legal filing. A lawyer can help.

Source: dol.gov, "Fact Sheet #28M: The Military Family Leave Provisions under the Family and Medical Leave Act," accessed on Nov. 14, 2017

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