The Family and Medical Leave Act (FMLA), a landmark piece of federal legislation, has for three decades granted covered workers the right to take time off for certain needs without risking their jobs. However, the law falls short for the families that serve: military spouses and other family members, military caregivers, and veterans.
Signed into law in 1993, the FMLA initially provided covered workers with the right to up to 12 weeks of unpaid time off per year to address their own serious health needs, care for a seriously ill loved one, or bond with a new child.1 The law covers both larger private sector employers (those with at least 50 employees) and government employers; workers must have been employed by a covered employer for at least a year and have worked an average of about 24 hours per week for that employer over the past year to qualify.2 Nationally, under these requirements, the law covers about 56 percent of all employees.3
As originally enacted, the law contained no provisions specifically targeted to past or current military service, though military family members, caregivers, and veterans benefit from the law’s general provisions. To respond to this need, Congress amended the FMLA in 2008 and 2009 to add two targeted protections in relation to military service: one focused on the impact of deployment on military families, the other on military caregivers.4 These important changes added vital new protections that reflect the distinctive needs of these populations.
However, as this issue brief details, these amendments do not go far enough; they also do not specifically address the needs of veterans. Congress should expand the FMLA to ensure that those who serve or have served and their families can take the time they need to address the impacts of that service.
‘Sacred obligation’: Why investments in the families that serve are essential
As President Joe Biden put it in November 2021, “we only have one truly sacred obligation, in my view, and that is prepare those we send into harm’s way, care for their families when they’re gone, and care for them and their families when they’re home.”5 Providing job-protected leave to address the impacts of deployment or care for a service-connected condition is one small but vital piece of how America can fulfill that sacred obligation—and ensure that this country continues to support those who serve and those who love them.
But caring for veterans, military families, and military caregivers is more than just the right thing to do; it is also a national security imperative.6 In the era of an all-volunteer force, the military must compete with civilian employers in hiring, a task made all the more challenging by low unemployment.7 In recent years, most branches have fallen short of their recruiting goals, in what a key Air National Guard leader termed “the most challenging recruiting environment the Department of Defense has ever faced.”8 Supporting service members and their families both during and after their service is an investment in recruiting and retention.
Congress should expand the FMLA to ensure that those who serve or have served and their families can take the time they need to address the impacts of that service.
Among today’s youth, fear of physical or mental health consequences, respectively, are the most commonly cited reasons for not wanting to join the military, while health and medical benefits are one of the most commonly cited “main reasons” youth might join.9 Ensuring that veterans can get the care they need for service-related health needs, including through valuable Veterans Affairs (VA) care, supports recruitment by responding to a key concern among potential recruits while reinforcing an existing strength.
Similarly, military spouse employment is a major driver of spousal support for continued service,10 while challenges around military spouse employment are a common factor in separation from service.11 Because spousal support is an important factor in military retention,12 policies such as expanded FMLA leave that bolster employment can also improve retention.
Moreover, military service is a tradition passed down through families. In 2019, 79 percent of Army recruits had a family member who served, including nearly 30 percent who had a parent who served.13 Yet increasing numbers of veterans, service members, and family members say they “would not recommend military life.”14 Policies that support current and former service members and their families can shape the way the next generation sees the military, affecting their choices about whether to serve.
The FMLA and military family members
The first group in need of additional FMLA protection is military family members, particularly spouses and partners. According to the U.S. Department of Defense, there are currently about 920,000 military spouses,15 roughly two-thirds of whom are married to active-duty service members, while the rest are married to Guard and Reserve members.16 Military spouses are overwhelmingly women, including about 90 percent of active-duty spouses and 85 percent of Guard and Reserve spouses.17 They are joined by 1.56 million military children, more than one-third of whom are ages 5 or younger.18
Deployment is a fact of life for military family members. In one 2021 study, nearly half—45 percent—of active-duty spouses reported their spouse had deployed for more than 30 consecutive days in the past three years, while an additional 30 percent reported that their spouse had deployed for more than 30 consecutive days at some point in their career.19 A service member’s deployment has profound impacts on the service member’s family, from necessary legal and financial arrangements to care responsibilities to planning for the service member’s rest and recuperation leave. These needs can compound the employment and financial strains that military spouses already face, including disproportionately high unemployment rates and the impacts of frequent service-related moves.20
Current deployment-related leave provisions
In recognition of the sacrifices military family members make, lawmakers passed sequential amendments in 2008 and 2009 to add a new purpose to the FMLA specifically for military spouses and other family members.21 This provision allows covered employees to take leave for certain needs—what it calls a “qualifying exigency”—in relation to a loved one’s current or impending military deployment.22
The specific needs for which leave can be taken were spelled out in regulations from the U.S. Department of Labor.23 Covered needs include, when in connection with the service member’s current or impending call or order to active-duty service:
- Making legal or financial arrangements for the service member, such as getting a will or power of attorney or representing the service member in pursuit of military benefits.24
- Attending to the care or education of the service member’s child or parent, such as arranging for alternate care, attending school meetings, or providing emergency care.25
- Participating in official military events, activities, or support programs.26
- Planning for or attending a funeral for the service member.27
- Spending time with a service member who is home on a short-term rest and recuperation leave.28
- Any need that arises in relation to a deployment that occurs with seven or fewer days’ notice.29
Recognizing that every situation is different, the regulations also allow leave to be used for other needs arising out of the deployment if the employer and the employee agree.30
Limitations of deployment-related leave
The current law around deployment-related leave does not go far enough to meet the needs of military family members in connection with deployment. In particular, the law falls short in two major ways: It excludes domestic service, and it leaves out service members’ domestic partners.
Excluding domestic service
The right to leave under the FMLA is limited to “covered active duty,” a restrictive legal term that is limited to deployment in a foreign country.31 This excludes many military family members from protections they need.32 Service members, particularly National Guard members, are often called into service within the United States in ways that the FMLA does not currently recognize.
At the height of the pandemic response, as many as 40,000 National Guard personnel were deployed at once in service of the response effort.
FEMA, “Transition of National Guard Activations for COVID-19 Response Activities” (2023).
National Guard members are the backbone of the country’s emergency response system. This invaluable service comes with limited warning and with profound impacts on those who remain at home. As President Biden has said, “National Guard and Reserve members are essential to the safety and security of our Nation, ready to serve at home or abroad at any moment’s notice.”33 For instance, National Guard members were called up for emergency needs in response to the COVID-19 pandemic, from administering vaccines and tests to relieving staffing shortages in nursing homes to delivering food.34 At the height of the pandemic response, as many as 40,000 National Guard personnel were deployed at once in service of the response effort—one of the largest such efforts in American history.35
Similarly, National Guard members are frequently called into service in response to natural disasters. In 2022, more than half of the nation’s near half-million National Guard members were involved in disaster response, including wildfires, floods, winter storms, tornados, and other severe weather.36 This response requires service members from across the country to meet the nation’s needs: For example, when Hurricane Ian hit the Southeast, more than 63,000 guard members from 11 states responded, saving thousands of lives.37 With an increasing number of yearly climate emergencies,38 this service will only become more essential.
Yet despite this critical role, the FMLA currently does not allow military family members to take leave to address the impacts of this domestic service. To remedy this problem, the FMLA definition of “covered active duty” should be amended to include domestic military service, such as responses to natural disasters and other emergencies. Recognizing that the impact on loved ones is not dependent on the source of the orders, this should include both federal and state service.
This broad coverage would mirror that available under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which protects the right of service members to get their jobs back following military service.39 Historically, USERRA has protected National Guard members acting under federal authority, including both Title 10 and Title 32 duty.40 Both kinds of federal authority have been important in domestic disaster relief, such as in response to major hurricanes and COVID-19.41 In 2021, USERRA was amended to include certain forms of state active duty (service under orders from a state’s governor), particularly those in response to national emergencies and major disasters.42 Those same forms of service should be included under the definition of “covered active duty” in the FMLA.
Excluding domestic partners
Even for covered deployments, the current law only allows a service member’s child, parent, or legal spouse to take leave in connection with deployment.43 That means that other loved ones whose lives may be equally affected or who may be filling the same support roles for the service member are not covered.
In particular, the FMLA does not currently allow a domestic partner, fiancé, or other significant other who is not a legal spouse to take deployment-related leave; as a result, even those who share a child or a household with the deploying service member are not eligible for leave if they are not legally married.44 In contrast, most state paid leave laws that cover deployment-related leave extend this leave to domestic partners, either explicitly or through more general language.45 The FMLA should be amended to, at a minimum, extend coverage for deployment-related leaves to the domestic partner of a service member.
The FMLA and military caregivers
The United States is home to an estimated 5.5 million military caregivers—people caring for a loved one who is ill or injured as a result of that person’s current or former military service.46 About 4 in 5 military caregivers are caring for someone who served prior to September 11, 2001 (“pre-9/11 caregivers”), including Gulf War, Vietnam, and earlier veterans.47 The remaining caregivers (“post-9/11 caregivers”) are caring for those who served after September 11, 2001, including Iraq and Afghanistan veterans and current service members.48
Commonly, these caregivers are the spouse or partner, parent, or (especially for older veterans) child of the service member, though many are extended family members or friends, neighbors, or other loved ones.49 Many military caregivers have themselves served in the armed forces, including roughly 10 percent of pre-9/11 caregivers and 20 percent of post-9/11 caregivers.50
Military caregivers often struggle to balance work and caregiving responsibilities
48.4%
Share of post-9/11 military caregivers who have had to "take unpaid time off from work or stop working temporarily" due to caregiving responsibilities
RAND Corporation
39%
Share of post-9/11 military caregivers who have had to cut back on their hours at work due to caregiving responsibilities
RAND Corporation
37.7%
Share of post-9/11 military caregivers who have had to quit work entirely due to caregiving responsibilities
Health Science Reports
Most military caregivers must try to balance caregiving responsibilities with work, and many struggle to do so.51 These challenges fall especially hard on post-9/11 caregivers, who are more likely to be of prime working age.52 Among post-9/11 military caregivers, nearly half—48.4 percent—report having taken “unpaid time off from work or stop[ped] working temporarily” due to caregiving responsibilities; 39 percent report having had to cut back on their hours at work.53 Many simply cannot keep up: In one study of post-9/11 caregivers, 37.7 percent reported having quit work entirely due to caregiving responsibilities.54
Military caregiver protections
Recognizing the toll that military caregiving takes on caregiver employment, in 2009, Congress amended the FMLA to add new protections for military caregivers.55 Most prominently, the FMLA now allows military caregivers to take covered leave for longer than civilian caregivers, reflecting the fact that military caregivers often need more time than civilian caregivers: On average, post-9/11 military caregivers report missing more than three times as much work as civilian caregivers.56 While FMLA leave is generally limited to 12 weeks in a one-year period,57 covered military caregivers may be able to take up to 26 weeks of FMLA leave to provide care.58 In addition, the amendment slightly expanded the list of family members for whom FMLA leave can be taken in the context of military caregiving.59
However, as with deployment-related leave, the current protections for military caregivers in the FMLA do not go far enough. There are three particularly important shortcomings in this provision: 1) the FMLA’s definition of family in relation to military caregivers; 2) the provision’s limitations as a one-time benefit; and 3) the law’s recency-of-service requirement.
Family definition
For civilian caregiving, the FMLA only covers leave when the care recipient is the employee’s legal spouse, parent, or child (typically only a minor child).60 For military caregiving covered under the military-specific provisions of the law, this list is expanded slightly, to cover care for a service member who is the employee’s spouse, parent, or child (of any age) or for a service member to whom the employee is “next of kin.”61 Under the law, “next of kin” is the service member’s “nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter,” as determined under a fixed legal hierarchy.62
While helpful, this expansion does not go far enough. In particular, it does not include chosen family members—loved ones with whom care recipients may not have a legal or biological relationship. Nearly one-quarter—23.4 percent—of post-9/11 military caregivers, along with 15.7 percent of pre-9/11 military caregivers, are friends or neighbors of their care recipient, relationships that the FMLA does not recognize or cover.63 This includes many caregivers who are veterans themselves: Prior Center for American Progress research found that 28 percent of former active-duty servicemembers had taken time off work to care for friends or chosen family members with serious health needs.64 In addition, unmarried significant others provide important care but are also not covered by the FMLA.
To truly meet the needs of military caregivers, the FMLA must be expanded to include all families, including chosen family.65 Expanding the family definition is particularly important because, unlike the other limitations on military caregiving under the FMLA, there is no fallback protection. Those who cannot qualify for military caregiver FMLA leave due to the nature of their family relationship are also excluded from regular FMLA protections, which have an even narrower understanding of family. Thus, without FMLA coverage as military caregivers, these caregivers may have no protected right to time off work, unless they benefit from a more generous state law.66
One-time benefit
Military caregiver FMLA leave is a one-time benefit; it can be used “during a single 12-month period.”67 This rule is applied on “a per-covered-servicemember, per-injury basis,”68 meaning that it can only be used once for the same person for the same “serious injury or illness.” Depending on the need, that time may be taken intermittently or continuously but cannot extend beyond the 12-month period. Any military caregiver leave not taken within 12 months of the first day of leave is forfeited.69 In other words, someone providing military caregiving for many years for a single condition can only take military caregiver leave during a single 12-month period.
This rule severely limits the impact of the FMLA’s military caregiver provision. Imagine that a caregiver takes two weeks of military caregiver FMLA leave to care for her brother, to whom she is next of kin, following surgery for a covered service-related condition. The worker does not need and so does not take any further leave in the following 12 months. If two years later her brother needs additional surgery for the same condition, the worker cannot take military caregiver FMLA leave again, even though she only used 2 of her 26 weeks. In this situation, she would not be able to take FMLA-covered leave at all, because the FMLA does not cover leave to care for a sibling with a serious health condition outside the military caregiver provision. And even in a situation where the caregiver can qualify for regular FMLA leave—for example, a spouse—leave in a subsequent 12-month period would be capped at 12 weeks, rather than 26 weeks.
Recency-of-service limitation
The special protections for military caregivers are also limited based on the time of their loved one’s service in relation to the treatment. The law uses “covered servicemember” as the legal term for a current or former service member for whom employees can take military caregiver leave.70 In addition to having a covered medical condition related to their service, a covered service member must either be currently serving or have been serving within the five years prior to the start of their “treatment, recuperation, or therapy.”71 As the regulations have interpreted this provision, this means that in order to qualify for the military caregiver provisions, caregivers must begin taking FMLA leave within five years of the end of their loved one’s service, with extremely narrow exceptions.72
As a result, the military caregiver provisions exclude many if not most caregivers for veterans. In 2023, anyone who left military service prior to 2018 would not qualify as a covered service member for a leave starting today. The impacts of this restriction are compounded by the fact that, as described above, military caregiver protections are currently a one-time benefit. If a worker takes their first military caregiving leave within the five-year window, that worker may not be able to take military caregiving leave again for the same condition. However, if the worker waits to use their leave, they could fall outside the five-year window and therefore not qualify.
There are myriad reasons why a caregiver would not take FMLA leave within the first five years of their loved one’s separation from the military. For example, the service member’s health condition could worsen later or require different treatment, generating a new need to leave work, or loved ones could be sharing care responsibilities and absences from work. Moreover, military caregivers may not have previously taken FMLA-covered leave because they were not eligible at the time: Nationwide, nearly half the private sector workforce is not covered by the FMLA due to its restrictive eligibility criteria.73 None of these reasons should disqualify a military caregiver caring for someone with a qualifying service-related health need from protection under the FMLA as a military caregiver.
As a result, the current military provision is best understood as extending additional protections to only a limited subset of miliary caregivers, even among those covered by the FMLA. To be clear, military caregivers may still be able to take ordinary FMLA leave to care but would not qualify for the special military caregiver protections—the expanded family definition and the extended time.
The FMLA and veterans
Finally, the FMLA should be amended to expand protections for veterans. Today, the FMLA does not meet the needs of veterans dealing with service-related health needs. In particular, veterans dealing with service-connected health impacts should be eligible for extended time off for these needs under the FMLA. While the law currently gives qualifying caregivers additional covered time when caring for someone with a service-connected health need—up to 26 weeks—it does not do the same for veterans themselves. Instead, veterans receive the same 12 weeks as all other workers. This creates the incongruous scenario where a caregiver may be entitled to more than twice as much FMLA time as the care recipient for the exact same health need, even though the care recipient is the one who served.
Of the 16.2 million military veterans in the United States, just more than half—8.2 million—are of working age, from 18 to 64 years old.74 On the whole, veterans have nearly identical labor force participation rates as nonveterans, while veterans’ unemployment rates are slightly lower than those of nonveterans.75 Military veterans are an essential component of today’s workforce, and maintaining employment is essential to veterans’ economic security.
Veterans need workplace leave that meets their needs, including for health needs connected to their military service. Twenty-seven percent of all veterans have a service-connected disability.76 Service-connected disabilities are the overwhelming driver of disability rates among veterans, which are twice as high as those among nonveterans.77 Among the youngest cohort of veterans by service era—those who served after September 11, 2001—these rates are even higher: 41 percent have a service-connected disability.78
Veterans’ physical health needs
The physical health needs of veterans are wide ranging and often distinct from those of the general population, especially as those who served more recently deal with the cumulative health impacts of multiple deployments.79 Veterans experience musculoskeletal disorders, hearing disorders, traumatic brain injuries, and chronic fatigue syndrome at dramatically higher rates than nonveterans.80 In addition, veterans self-report experiencing cancer, strokes, COPD, arthritis, and kidney disease at much higher rates than the general population.81 Estimates of the proportion of veterans returning from Iraq and Afghanistan with traumatic brain injuries range as high as 28 percent.82 Veterans are also much more likely than nonveterans to experience severe pain.83
Veterans’ mental health needs
Veterans also experience significant mental health needs. According to a U.S. Government Accountability Office analysis, one-third of all veterans using VA health care have at least one diagnosed mental health condition.84 For example, veterans of Operation Iraqi Freedom and Operation Enduring Freedom are more than four times as likely as the general population to experience posttraumatic stress disorder in their lifetimes.85 Compounding these concerns, veterans experience high rates of substance use disorders, often co-occurring with other health needs.86
Suicide prevention is a particular priority in veterans’ health: The suicide rate among veterans is 1.5 times that of nonveterans,87 and since 2001, the number of veterans who have died by suicide is four times higher than the number of service members who have died in combat.88 CAP research found that in 2019, nearly 1 in 4 gun suicides—23 percent—were among current or former military members.89 That rate is vastly disproportionate to the share of the population that serves, with veterans, active-duty military, and members of the National Guard and reserve collectively representing just 5.48 percent of the total U.S. population.90
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Seeking care through the VA system
Moreover, the current law does not accommodate the logistics often involved in seeking or receiving care through the VA system. Access to health care through the VA is one of the core ways that the United States repays those who have served, a protection veterans are entitled to both legally and ethically.91 Research also shows that VA health care is better and more efficient than private care, increasing the value of this protection.92 However, many veterans, particularly those in rural areas, must travel substantial distances to access this care, posing an important barrier to care.93 Ensuring extended leave time for service-connected health conditions can give veterans greater flexibility to pursue VA care.
This country has long used USERRA94 and its predecessors, which date back to World War II, to protect service members’ civilian employment when they must take time away from work in order to serve.95 These laws have recognized that serving the country, whether to respond to a draft or as Guard and Reserve members answering the call to active duty in an all-volunteer force, should not cost service members their jobs. Those who must attend to health needs resulting from their service deserve the same commitment. Amending the FMLA to provide extended time for veterans who are ill or injured as a result of their military service, on par with what the FMLA already provides for military caregivers, would be an important first step in that direction.
Conclusion
More than a decade ago, Congress recognized that military families and military caregivers needed specific, targeted protections under the FMLA to meet their distinctive needs. It is time to build on that recognition and further expand the FMLA’s provisions to better meet the needs of service members, veterans, and those who love and care for them. Those who serve, and their families, make innumerable sacrifices for this country. They should not also be forced to sacrifice their jobs to deal with the consequences of answering the call to service.