Figuring Out Military Leave
June 23, 2008
During this presidential election year, politicians are debating how long American troops may be fighting wars overseas. Companies with employees on active military leave, though, need to be sure that they are complying with all the relevant legislation right now.
Employers should already be aware of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which governs the employee eligibility and job entitlements, employer obligations, benefits and remedies for veterans returning from active military service. However, other legislation, including the Family and Medical Leave Act (FMLA), also affect veterans’ work status as well as the right to certain leave for their family members. To ensure they are treating their employees properly, and to keep themselves within the law, it is important for employers to comply at all times with these and other statutes.
“Recognition of the rights and responsibilities established by USERRA will ensure that those who stood ready to serve our nation can return to their civilian jobs with all the legal benefits they have earned,” said Frederico Juarbe Jr., assistant secretary of labor for the Veterans’ Employment and Training Service, which is part of the U.S. Department of Labor (DOL). Juarbe’s comments came after the department issued a memo clarifying its position on the rights of returning uniformed service members.
There are many facets to USERRA, and employers must be sure to fulfill all their obligations to employees who left their jobs to perform military service. Among other things, the statute defines “employer” more broadly than many other federal laws, including the Americans with Disabilities Acts and Title VII of the Civil Rights Act of 1964.
Under USERRA, when employees return from military duty, employers must:
• Re-employ service members in the job that they would have attained had they not left for military service, under the so-called “escalator” principle;
• Re-employ service members with the same seniority, status, and pay, as well as other rights and benefits determined by seniority;
• Make reasonable efforts, such as training returning employees to refresh or upgrade their skills, in order to help returning service members qualify for re-employment;
• Provide for alternative re-employment if the returning service member cannot qualify for an escalator position;
• Consider that while a person is performing military service, he or she is deemed to be on furlough or leave of absence and is entitled to the same non-seniority rights as other employees on non-military leaves of absence; and
• Protect the pension plans of service members serving military duty.
The Family and Medical Leave Act, for its part, guarantees eligible employees up to 12 unpaid weeks of job-protected leave for several events, including the birth and care of a newborn, adoption, or foster care or a serious health condition of the employee or certain members of the family.
OBLIGATIONS TO VETERANS UNDER THE FMLAUSERRA grants employees all of the benefits they would have had if they had been working, rather than deployed to serve in the military; the federal government considers FMLA one of those benefits.
There are two criteria for taking leave under FMLA that can directly affect USERRA, according to the Department of Labor. To be eligible for the 12 weeks of unpaid leave, a person must have worked for an employer for at least 12 months, and the employee must have worked at least 1,250 hours during the 12 months preceding the start of the leave.
When determining FMLA eligibility, employees must be given credit for months they would have been employed if they had not been serving in the military. Each month an employee spends in military service counts as a month of employment. As an example, the Department of Labor points to a hypothetical employee who had worked for a company for nine months before being called up to nine months of military service. Upon returning to civilian work, “the employee must be considered to have been employed by the employer for more than the required 12 months (9 months actually employed plus 9 months while serving in the military service) for purposes of FMLA eligibility.” The months of employment do not have to be consecutive in order to count, according to the Labor Department.
Along the same lines, employers must credit employees for the 1,250 hours they would have worked had they not been called up for military service. In order to determine those hours, employers can generally use a worker’s pre-service work schedule, according to the DOL.
FMLA OBLIGATIONS EXTEND TO SERVICE MEMBERS' FAMILIESThe FMLA also provides for job-protected leave for family members of service members, either for “any exigency…arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation” or to care for a family member injured in the line of duty. These provisions are extended to “next of kin” who are not covered under traditional FMLA leave.
A “qualifying exigency” leave entitles employees to take up to 12 weeks of leave; however, the term “qualifying exigency” has not yet been clearly defined by the Department of Labor. In the meantime, employers are required to “act in good faith” and the DOL “encourages employers to provide this type of leave to qualifying employees.”
The Act also provides strong protections for the families of injured service members, permitting spouses, sons, daughters, parents, or next of kin to take up to 26 weeks of leave to care for a “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.”
Employers with questions about USERRA and FMLA can visit the DOL Website at www.dol.gov/vets/programs/userra/main.htm and www.dol.gov/vets/media/fmlaq-a.pdf.
Besides federal government regulations, several states also legislate the type and length of leave granted to veterans. For example, in Missouri the attorney general has the power to enforce re-employment rights for employees who have been called to active state duty by the governor.
In addition to the fact that all employers should fully support employees who give of themselves to serve our country, the stakes for failing to comply with USERRA can be high; the U.S. Department of Justice, which is charged with bringing complaints of USERRA violations, has sworn to go after employers who violate the act.
“This nation values the sacrifices made by its military reservists. No service member should be disadvantaged in the workplace for answering a call to duty,” said Rena J. Comisac, acting assistant attorney general for the Civil Rights Division, in announcing a lawsuit filed last year against the Clerk of the Circuit Court for Hillsborough County, Fla., alleging USERRA violations. “The Civil Rights Division of the Department of Justice remains committed to fully protecting the employment rights of persons who serve in the armed forces.”
Publication date: 06/23/2008