I know my business is covered by the federal Family and Medical Leave Act (FMLA) because we have more than 50 employees, but I received a request for an extended leave of absence that I’m not sure is covered by FMLA. What do I need to consider?
As explained in your Helpline request, the situation is as follows:
• One of your employees informed you that while she was on vacation, her husband was seriously hurt in a skiing accident and she is requesting time off to care for him. You provided her with the notice of rights and designation form, letting her know that she is entitled to take up to 12 weeks of time off to care for her husband.
• Your employee sent you a note from her husband’s doctor stating that the employee needs 6 months of time off to care for her husband and his injuries.
• Your employee is claiming that because her husband is in the military, she is entitled to 26 weeks of time off under the FMLA to care for her husband.
Family Leave Differences
As you may know, the FMLA and the California corollary, the California Family Rights Act (CFRA) are identical in many situations, but there are a few differences.
One of those differences is that the FMLA provides up to 26 weeks of time off for an employee to care for a family member who is a member of the Armed Forces who has a “serious injury or illness.” This is referred to as “Military Caregiver Leave.”
The CFRA does not provide this type of extended leave, but oftentimes the “serious injury or illness” under the Military Caregiver Leave would run concurrently with the 12 weeks of leave for a “serious health condition” under the CFRA.
In this situation, your employee would not be eligible for the extended leave, but simply the 12 weeks running concurrently under both the FMLA and the CFRA.
Extended Leave Parameters
The employee is not entitled to the extended leave because that is reserved for military services members who were injured in the line of duty on active duty in the Armed Forces, or who had an existing injury that was aggravated while in the line of duty in the Armed Forces.
In that your employee’s husband was injured while skiing on a vacation, his injury was not one that was incurred in the line of duty or aggravated in the line of duty for the Armed Forces.
Such injuries incurred while engaged in activities outside of active duty do not provide for the extended Military Caregiver Leave but would qualify your employee for the 12 weeks of leave under the FMLA and CFRA.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
