Leave to care for a covered servicemember with a serious injury or illness (29 CFR § 825.127)

§ 825.127) (a) Eligible employees are entitled to FMLA leave to care for a covered servicemember with a serious illness or injury. (b) Covered servicemember means: (1) 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. (2) A covered veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness. Covered veteran means an individual who was a member of the Armed Forces, including a member of the National Guard or Reserves, and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. An eligible employee shall commence leave to care for a covered veteran within five (5) years of the veteran’s active duty service, but the single twelve (12)-month period described in subsection (e)(1) of this section may extend beyond the five (5)-year period. (A) For an individual who was a member of the Armed Forces, including a member of the National Guard or Reserves, and who was discharged or released under conditions other than dishonorable prior to the effective date of this Final Rule, the period between October 28, 2009 and the effective date of this Final Rule shall not count towards the determination of the five (5) year period for covered veteran status. (c) A serious injury or illness means: (1) In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness that was incurred by the covered servicemember in the line of duty on active duty in the Armed Forces or that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces, and that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating; and (2) In the case of a covered veteran, means an injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces and manifested itself before or after the member became a veteran, and is: (A) a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; or (B) a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of fifty (50) percent or greater, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or (C) a physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so absent treatment; or (D) an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers. (d) In order to care for a covered servicemember, an eligible employee shall be the spouse, son, daughter, or parent, or next of kin of a covered servicemember. (e) An eligible employee is entitled to twelve (12) workweeks of leave to care for a covered servicemember with a serious injury or illness during a single twelve (12)-month period. (1) The single twelve (12)-month period described in subsection (e) of this section begins on the first day the eligible employee takes FMLA leave to care for a covered servicemember and ends twelve (12) months after that date, regardless of the method used by the employer to determine the employee’s twelve (12) workweeks of leave entitlement for other FMLA-qualifying reasons. If an eligible employee does not take all of his or her twelve (12) workweeks of leave entitlement to care for a covered servicemember during this single twelve (12)-month period, the remaining part of his or her twelve (12) workweeks of leave entitlement to care for the covered servicemember is forfeited. (2) The leave entitlement described in subsection (e) of this section is to be applied on a per-covered servicemember, per-injury basis such that an eligible employee may be entitled to take more than one period of twelve (12) workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember with a subsequent serious injury or illness, except that no more than twelve (12) workweeks of leave may be taken within any single twelve (12)-month period. An eligible employee may take more than one period of twelve (12) workweeks of leave to care for a covered servicemember with more than one serious injury or illness only when the serious injury or illness is a subsequent serious injury or illness. When an eligible employee takes leave to care for more than one covered servicemember or for a subsequent serious injury or illness of the same covered servicemember, and the single twelve (12)-month periods corresponding to the different military caregiver leave entitlements overlap, the employee is limited to taking no more than twelve (12) workweeks of leave in each single twelve (12)-month period. (3) An eligible employee is entitled to a combined total of twelve (12) workweeks of leave for any FMLA-qualifying reason during the single twelve (12)-month period described in subsection (e) of this section, provided that the employee is entitled to no more than twelve (12) workweeks of leave for one or more of the following: because of the birth of a son or daughter of the employee and in order to care for such son or daughter; because of the placement of a son or daughter with the employee for adoption or foster care; in order to care for the spouse, son, daughter, or parent with a serious health condition; because of the employee’s own serious health condition; or because of a qualifying exigency. (4) In all circumstances, including for leave taken to care for a covered servicemember, the employer is responsible for designating leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the designation to the employee as provided in section 31-51rr-31 of the Regulations of Connecticut State Agencies. In the case of leave that qualifies as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition during the single twelve (12)-month period described in subsection (e) of this section, the employer shall designate such leave as leave to care for a covered servicemember in the first instance. Leave that qualifies as both leave to care for a covered servicemember and leave taken to care for a family member with a serious health condition during the single twelve (12)-month period described in subsection (e) of this section shall not be designated and counted as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition. As is the case with leave taken for other qualifying reasons, employers may retroactively designate leave as leave to care for a covered servicemember pursuant to section 31-51rr-32(d) of the Regulations of Connecticut State Agencies. (f) Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of twelve (12) workweeks of leave during the single twelve (12)-month period described in subsection (e) of this section if the leave is taken for birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement, to care for the employee’s parent with a serious health condition, or to care for a covered servicemember with a serious injury or illness. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer.