states under the jurisdiction of the Ninth Circuit "[A]n employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection." Rights during leave Employees can have up to 12 weeks of unpaid leave for childbirth, adoption, to care for a close relative in poor health, or because of an employee's own poor health. In full, the purposes for leave are: to care for a new child, whether for the birth, the adoption, or placement of a child in foster care; to care for a seriously ill family member (spouse, son, daughter, or parent) (Note: Son/daughter has been clarified by the Department of Labor to mean a child under the age of 18 or a child over the age of 18 with a mental or physical disability as defined by the Americans With Disabilities Act, which excludes, among other conditions, pregnancy and post-partum recovery from childbirth); to recover from a worker's own serious illness; to care for an injured service member in the family; or to address qualifying exigencies arising out of a family member's deployment. twenty-six work weeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember's spouse, son, daughter, parent, or next of kin (military caregiver leave). Child care leave should be taken in one lump, unless an employer agrees otherwise. If a father and mother have the same employer, they must share their leave, in effect halving each person's rights, if the employer so chooses. Employers must provide benefits during the unpaid leave. Under §2652(b) states are empowered to provide "greater family or medical leave rights". Since 2008, the Department of Labor has allowed the spouse, child, or parent of an active-duty military member who is deployed overseas for 12 or more months to take up to 12 weeks of leave. Also, a military caregiver provision was added that would allow a caregiver to take up to 26 weeks of leave in order to actively care for a military member who requires medical attention for acute or ongoing conditions. Substitute leave Under §2612(2)(A) an employer can make an employee substitute the right to 12 unpaid weeks of leave for "accrued paid vacation leave, personal leave or family leave" in an employer's personnel policy. Originally the Department of Labor had a