In honor of Memorial Day weekend, here’s a summary of the rights of employees who take leaves of absence to serve our country, and their family members.
USERRA
The Uniformed Services Employment and Reemployment Rights Act of 1994 protects employees who leave their jobs to serve in various military capacities.
Five year (or more) rule. An employee’s right of reemployment is good for at least a five-year term of duty, but certain special provisions may extend even that time:
*Initial enlistments that last more than five years
*National Guard and Reserve training duty
*Involuntary extensions of active duty, or recalls, especially during times of national emergency
*Convalescence after a service-related injury, up to two years (see below)
Notice requirements. Employees are required to provide advance notice of the military leave, in writing or orally, unless advance notice is “impossible, unreasonable, or precluded by military necessity.” The employee should provide notice to the employer as early as is “reasonable under the circumstances.”
Reemployment request. If the employee’s military service is for 30 days or less, he must return to work by the start of the next regularly scheduled work period on the first full day after release from service, allowing enough time for safe travel home plus an eight-hour rest period. If the service is for 31 through 180 days, the employee has 14 days after release to apply for reemployment. If the service is for 181 days or more, the employee has 90 days after release to apply for reemployment.
Paid, or unpaid? Military leave is generally unpaid by the employer. However, an employee on military leave may use her accrued paid leave or vacation time. (On the other hand, the employer is not allowed to require her to do so.)
Disability rights. Employers are required under the USERRA to make reasonable efforts to accommodate the disability of an employee who has served in the military. (Of course, the reasonable accommodation provisions of the Americans with Disabilities Act and the Rehabilitation Act of 1973 — if the employer is a federal contractor — as well as applicable state or local fair employment practices laws, will also apply.) A service member who is convalescing from a service-related injury must be given up to two years from the date of completion of service to either return to work or seek reemployment.
“Riding the escalator.” An employee who has been on leave for military service has the right to be reinstated (assuming all other requirements have been met) in the job he would have had if he hadn’t been away, with the same seniority (and seniority rights), status, and pay. This is called “the Escalator Principle.” In addition, the military member must be given the same non-seniority-based rights that are available to other employees on non-military leaves of absence or furloughs. If training is necessary to get the military member to back up to speed, he must be allowed a reasonable period of time to get it done. If he can’t requalify despite the availability of training, then the employer is required to try to place him in another job.
Health insurance during periods of military service. If the military leave is 30 days or less, the employer must continue health insurance coverage as if the military member was still actively employed. If the military leave is more than 30 days, the military member may continue her health insurance through the employer for a maximum of 24 months, and the employer can require her to pay a maximum of 102 percent of the full premium for the coverage.
USERRA requirements are enforced by the U.S. Department of Labor. Here’s a link to the DOL’s USERRA portal. The left-hand column has links to posters, fact sheets, and you name it.
FAMILY AND MEDICAL LEAVE ACT
For the most part, the USERRA, not the FMLA, covers service members’ time away from work. However, a few special provisions of the FMLA apply to employees who serve or have served in the military:
*Generally, an employee must have worked for the employer for at least 12 months to be eligible for FMLA leave. The 12 months does not have to be consecutive, but the employer usually doesn’t have to count employment before a “break” of seven years or more. However, if the interruption was for military service that would be covered under the USERRA, then the seven-year limit doesn’t apply.
*Obviously, if an employee needs FMLA leave for a physical or psychological condition incurred in military service, that time would be an FMLA-covered “serious health condition” if the employee met the other requirements for FMLA leave.
Apart from the above, most of the FMLA “military” provisions apply to employees who are related to the covered service member:
*”Qualifying exigency” leave is available to the spouse (including same-sex spouses), parent, or child (including adults, and adopted, foster, or step- children) for a variety of “preparations” for and “wrap-up” of the service member’s military leave, including child care arrangements, military ceremonies, and the like.
*”Military caregiver” leave is available to the “next of kin” (defined in the FMLA), spouse (including same-sex spouses), parent, or child (including adults, and adopted, foster, or step- children) to care for a covered servicemember or covered veteran who has a serious injury or illness that was incurred or aggravated in the line of duty. Unlike all other types of FMLA leave, “military caregiver” leave is available for up to 26 weeks in a “single 12-month period,” which may not necessarily be the same as the 12-month FMLA “leave year” that the employer uses for other purposes. Additional “single 12-month periods” are available for different covered service members or covered veterans, and for different military-related injuries or illnesses involving the same covered service member or covered veteran. (As you’ve probably gathered, this type of leave is extremely complicated to administer, so don’t rely on my short summary in determining your rights or obligations.)
The FMLA, like the USERRA, is enforced by the U.S. Department of Labor. Here’s a link to the DOL’s FMLA portal, which has links to fact sheets, posters, FAQs, and anything else FMLA-related that your heart could desire.
