The Family and Medical Leave Act (FMLA)

• The FMLA applies to all public employers and to private employers with 50 or more employees.
• The FMLA entitles eligible employees to up to 12 weeks of unpaid, job-protected leave in a 12-month leave year period; 26 weeks for military caregiver leave.

The federal Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to up to 12 workweeks of job-protected, unpaid leave in a 12-month leave year for certain qualifying reasons. Eligible employees may take up to 26 workweeks of leave for military care giving purposes.

The Uniformed Services Employment and Reemployment Rights Act (USERRA)

• The USERRA provides for military leave.
• The USERRA applies to all employers, regardless of size.

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to provide reemployment rights for veterans, and members of the National Guard and National Reserve, following qualifying military service. USERRA works to ensure that those who serve the country can retain (or return to) civilian employment and benefits and can seek employment free from discrimination because of service.

Although the law doesn’t specifically refer to job protection, this is essentially the protection given. If an employer lists an employee as terminated, it must still reinstate the employee. USERRA also provides protection for disabled veterans by requiring employers to make reasonable efforts to accommodate the disability.

Federal contractors and sick leave

• Employees who work under certain federal contracts must be provided with paid sick leave.

Executive Order 13706 and its implementing regulations require federal contractors (with covered contracts solicited and awarded on or after January 1, 2017), to provide up to seven days per year of paid sick leave to employees.

The provisions apply to four major categories of contractual agreements:

1. Procurement contracts for construction covered by the Davis-Bacon Act (DBA);
2. Service contracts covered by the McNamara-O’Hara Service Contract Act (SCA);
3. Concessions contracts, including any concessions contracts excluded from the SCA by the Department of Labor’s regulations at 29 CFR 4.133(b); and
4. Contracts in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

Contractors are not required to amend their existing paid time off (PTO) policies that provide employees with at least the same rights and benefits as required by the regulations. If, for example, a contractor’s policy provides employees with 100 hours of PTO that can be used for any purpose, separate paid sick leave need not be required.

Accrual

Employers with covered contracts must provide:

• One hour of paid sick leave for every 30 hours worked on or in connection with a covered federal contract, or
• At least 56 hours of paid sick leave at the beginning of each accrual year.

Employers may choose to allow workers to accrue leave over time, or to frontload leave for ease of administration.

Hours worked

Employers may assume, where records of employees’ hours are not required to be kept (such as in the case of employees exempt from overtime), that such employees are working on or in connection with the federal contract for 40 hours each week. Estimates of hours worked are also acceptable, as long as the estimates are reasonable.

Notification

Employees must be notified in writing of the amount of paid sick leave available at the end of each pay period or each month (whichever is shorter).

Limits on leave

Contractors may limit the accrual of leave to 56 hours each year, but must allow accrued, unused leave from one year to the next. Contractors may also cap leave at 56 hours.

Employees must be allowed to use leave in increments as small as one hour.

Rehired employees

Where an employee leaves employment but is rehired within 12 months, the contractor must reinstate the employee’s accrued, unused paid sick leave if rehired (by the same contractor) within 12 months after job separation. This requirement does not apply if the contractor paid the employee out for accrued, unused paid sick leave upon separation.

Reasons for leave

Contractors must allow the use of leave for the following reasons related to the employee or the employee’s child, parent, spouse, domestic partner, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship:

• Physical or mental illness, injury, or medical condition of the employee;
• To obtain diagnosis, care, or preventive care from a health care provider by the employee; or
• Reasons related to domestic violence, sexual assault, or stalking, including obtaining counseling, seeking relocation, taking legal action, or the purposes described in (1) and (2).

State leave laws

• Many states have laws that provide for some form of employee leave.
• The laws may apply to certain employers and have employee eligibility criteria.

Employers are aware that the Family and Medical Leave Act (FMLA) provides job-protected leave for employees who meet the eligibility criteria and work for a covered employer. However, most states have adopted laws that protect employees for many other types of leave. For instance, all states have laws that allow employees to take time off for jury duty, and quite a few require the employer to continue paying the employee during jury duty.

Other types of job-protected leave include time off for:

• Sick leave;
• Voting (usually only a few hours, with advanced notice often required);
• Attending certain school functions (often limited to disciplinary hearings),
• Victims of crimes or domestic violence;
• Spouses or family members of those in the military (beyond the FMLA provisions);
• Attending court proceedings or responding to a subpoena (employees should be granted time off even if state law does not address it since the employee could be in contempt of court for failing to appear);
• Emergency workers such as volunteer firefighters who respond to calls; and
• Donating blood, organs, and/or bone marrow.

Organizations should establish policies for employee leave. These polices should be tailored to the specific needs of their workforce. For example, some companies allow a specific number of days, or hours, which can be taken as paid leave. Another option is to allow employees to take a certain amount of unpaid leave. There are also times when a company (because of federal and state law) must allow an employee to take leave.

Jury duty

• Employees might be called to join a jury panel and then selected to serve as a juror.
• This jury duty will usually take an employee away from the employee’s job duties.

When an employee is called to perform jury duty, there is not much that an employer can do to prevent the employee from serving. Most employers consider jury duty a community service. Federal and state laws also recognize jury service as a civil obligation.

Unless for a federal grand jury, jury duty is not governed by federal law, but rather by state law. Some state laws specify whether jury duty may be postponed and whether the employee has job protection during jury duty leave, and is protected from discipline for serving on a jury. Some states also prohibit employers from discouraging or intimidating employees from serving on a jury.

In some situations, employers may not require employees who work a night shift to work if they are on jury duty during the day.

Some laws allow employers to ask for proof that employees have been called to jury duty before allowing the time off.

Even if a state has no specific law, a city or county could.

Time off to vote

• Federal law (such as the Fair Labor Standards Act) does not mandate time off to vote.
• State laws may mandate that employers provide employees time off from work to vote.

While the Fair Labor Standards Act (FLSA) does not require paying non-exempt employees for time not worked, including time taken to vote in state or federal elections, this is generally a matter of agreement between an employer and an employee.

Many state laws require that employees are to be allowed time off to vote, particularly when the workday is such that employees would otherwise not have the opportunity to vote.

State laws also specify any penalties that can be applied to employers that fail to allow employees time off to vote. Most employers voluntarily give time off and usually pay employees for the time taken.

How much time off also varies among state laws, and some states have posters employers are required to put up at the workplace to notify employees of applicable rights to the time off.

Under the FLSA, employees who are classifi9ed as exempt cannot be subject to a salary deduction for partial-day absences taken to vote. Exempt employees may, however, be required to use vacation or other paid time off to “cover” the absence, or may be required to make up the missed working time.

The following states do not have specific laws for allowing time off to vote, although employers should consider allowing the use of personal time off:

• Delaware
• District of Columbia
• Florida
• Idaho
• Indiana
• Louisiana
• Maine
• Michigan
• Mississippi
• Montana
• New Hampshire
• New Jersey
• North Carolina
• Oregon
• Pennsylvania
• Rhode Island
• South Carolina
• Vermont*
• Virginia

*Though it does not require voting leave Vermont law requires employers to grant employees unpaid time off to attend town meetings. Employees must request this time off seven days in advance.

Other states require time off, including whether the time should be paid. Some states don’t provide for a specific amount of time off, but simply require employers to allow the time off presumably a reasonable amount of time.

Note that, even where state law requires paying employees (usually by stating that no deduction may be made for the time off), the the hours taken to vote should not have to be counted as “working” time for purposes of overtime calculations.

States that have voting time off provisions include the following:

• Alabama
• Alaska
• Arizona
• Arkansas
• California
• Colorado
• Connecticut
• Georgia
• Hawaii
• Illinois
• Iowa
• Kansas
• Kentucky
• Maryland
• Massachusetts
• Minnesota
• Missouri
• Nevada
• New Mexico
• New York
• North Dakota
• Ohio
• Oklahoma
• South Dakota
• Tennessee
• Texas
• Utah
• Virginia
• Washington
• West Virginia
• Wisconsin
• Wyoming

Covered employers

All public employers are covered by the law. Private employers are covered if they have 50 or more employees in the U.S. who have worked at least 20 workweeks in the current or preceding calendar year.

Once covered by the law, employers are to post an FMLA notice informing employees and applicants of the FMLA provisions.

Not all employees of covered employers are eligible to take FMLA leave.

Eligible employees

Employees of covered employers are eligible to take FMLA leave if they:

• Have worked for the employer for at least 12 months (need not be consecutive),
• Have worked at least 1,250 hours in the 12 months before leave is to begin, and
• Work at a location with at least 50 company employees within 75 miles.

All three must be met for an employee to be eligible to take FMLA leave.

Qualifying reasons

Eligible employees may take up to 12 workweeks of FMLA leave for the following reasons:

• For birth of a son or daughter, and to care for the newborn child;
• For placement with the employee of a son or daughter for adoption or foster care;
• To care for the employee’s spouse, son, daughter, or parent with a serious health condition;
• Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job; or
• Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active-duty status.

Eligible employees may take up to 26 workweeks of FMLA leave to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember (miitary caregiver).

Leave entitlement

Employees may take FMLA leave on a continuous, intermittent, or reduced schedule basis.

The 12 workweeks of leave are to be taken within a 12-month leave year period. Employers generally have the option of four methods of calculating the 12-month leave year period:

• The calendar year;
• Any fixed 12-month leave year, such as a fiscal year, a year required by state law, or a year starting on an employee’s anniversary date;
• The 12-month period measured forward from the date any employee’s first FMLA leave begins; or,
• A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

The 26 workweeks of military caregiver leave is to be taken in a 12-month period measured forward from when leave begins.

During FMLA leave, employers must continue group health care coverage on the same basis employees had before leave began.

Certification/Recertification

When employees request leave for a serious health condition or a military qualifying exigency, employers may require employees to provide a certification supporting the need for leave.

Employees have at least 15 calendar days to provide a requested certification, absent extenuating circumstances.

In some situations, employers may require employees to provide a recertification.

Notices

When an employee puts an employer on notice of the need for leave, the employer has five business days to determine if the employee meets the eligibility criteria and give the employee and eligibility/rights and responsibilities notice.

Employees are to provide at least 30 days advance notice of the need for foreseeable leave, or as soon as possible.

If employers request a certification, they may include it with the eligibility/rights and responsibilities notice.

Once the employer has enough information to determine whether the absence qualifies for FMLA protections, the employer has five days to give the employee a designation notice.

Reinstatement

Upon the end of leave, employers are to reinstate employees to their original position or an equivalent one.

An equivalent position is one with virtually identical benefits, pay, and other terms and conditions of employment.

Who is covered?

• All employers, both civilian and federal government, are covered by USERRA.

All civilian employers must comply with Uniformed Services Employment and Reemployment Rights Act (USERRA - Title 38 U.S. Code, Chapter 43, Sections 4301-4335, Public Law 103-353), regardless of size or number of employees. Civilian employees are covered under 20 CFR 1002. Federal government employees are covered under 5 CFR 353.

All employees are covered by the law, except for some temporary employees. Temporary employees who are not covered include those who have positions that are brief or non-recurrent, and that cannot reasonably be expected to continue indefinitely or for a significant period.

USERRA protections

• USERRA provides a variety of protections from discrimination to reemployment.
• Employers must be aware of the protections to ensure compliance.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) guarantees employees returning from military service or training the right to be reemployed at their former job (or as nearly comparable a job as possible) with the same benefits. USERRA, therefore, regulates how employers deal with:

• Reemployment
• Promotions
• Retraining
• Vacation
• Health benefits
• Compensation
• Retirement benefits
• Termination

When employees return from service, employers must:

• Reemploy them;
• Preserve their seniority status and benefits; and
• Refrain from discriminating against them regarding hiring, retention, and promotion.

Discrimination

• USERRA prohibits employers from discriminating against people protected by the act.

Employers must not discriminate against employees who fall under the protections of the Uniformed Services Employment and Reemployment Rights Act (USERRA) based on their past military service or current military obligations. Employers must also refrain from discriminating against employees who intend to join one of the uniformed services.

Let’s say, for example, that an employer has an employee who is up for a promotion that will entail greater responsibility and a greater time commitment. The employer learns that the employee is considering joining the National Guard. The employer may not reconsider offering the employee the promotion based on this information.

The ban on discrimination is broad, extending to most areas of employment, including hiring, promotion, reemployment, termination, and benefits.

If an employee’s past, present, or future connection with the service is a motivating factor in an employer’s adverse employment action against the employee, the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of the employee’s connection with the service. The employer has the burden of proof once a legal claim has enough evidence to proceed to trial or judgment.

These provisions apply whether or not the employee has performed military service.

Liability is possible when service connection is just one of an employer’s reasons for the action. To avoid liability, employers must prove that a reason other than service connection would have been sufficient to justify its action.

Both the standard and burden of proof apply to all cases, regardless of the date of the cause of action, including discrimination cases arising under the predecessor law.

Employers are also prohibited from retaliating against anyone:

• Who files a complaint under the law;
• Who testifies, assists, or otherwise participates in an investigation or proceeding under the law; or
• Who exercises any right provided under the law.

Reasons for leave

• Employers must follow the protections outlined by USERRA for employee job absences.

Be aware that employees have the protections of the Uniformed Services Employment and Reemployment Rights Act (USERRA) for voluntary service or required military service. Reemployment rights extend to all persons absent from the job because of “service” which includes service on a voluntary or involuntary basis, and includes the following:

• Active duty,
• Active duty for training,
• Initial active duty for training,
• Inactive duty training,
• Full-time National Guard duty,
• Obtaining an examination to determine the fitness of the person to perform any of the above duties, and
• Funeral honors duty.

USERRA protects employees absent from work for the following reasons:

• Service in the Army, Navy, Marine Corps, Air Force, and Coast Guard;
• Service in the Army or Air National Guard during federal authority call-up;
• Attendance at military training, weekend drills, summer camps, or fitness-for-duty examinations; or
• Military funeral honors duty.

In addition, USERRA provides protection for employees serving in the following:

• The Commissioned Corps of the Public Health Service,
• The National Disaster Medical System, and
• Any other category designated by the President in time of war or emergency.

Effective January 5, 2021, members of the National Guard serving on State Active Duty are covered under USERRA if the service is:

• For 14 days or more,
• In support of a national emergency declared by the President under the National Emergencies Act (including service in support of the national emergency concerning the COVID-19 outbreak declared by the President under the National Emergencies Act on March 13, 2020), or
• In support of a major disaster declared by the President under Section 401 of the Stafford Act.
  

Notice of leave

• Employees must give employers notice of military leave, with exceptions.
• Notice may be written or verbal.

To be considered for reemployment, employees must give their employer an advance notice of military leave with some exceptions. Employees can do this either orally or in writing. Employers may not, however, require that employees provide written orders, or training schedules, as a condition for taking military leave since the employee may not have any written orders.

During an emergency, a military unit is often told to immediately report to a specified location, and written orders can’t be prepared. In this case, oral notification is sufficient.

Sometimes, advance notice of military leave is prevented by military necessity or is otherwise impossible or unreasonable in all situations. If, for example, a military mission, operation, exercise, or requirement is classified, the employee may be unable to provide notice of leave. Homeland Security and the Secretary of Defense generally determine whether giving notice is precluded by military necessity.

In other situations, employees may need to report for military service in an extremely short period of time.

Employees who are members of the National Guard or Reserve must provide their employers with advance notice of their inactive duty training. This could include a copy of orders, the annual drill schedule, or other types of documentation.

Employees need not provide documentation before going on military leave, and employers may not require that they do so.

Length of leave

• Employees may take up to five years of cumulative military leave while with an employer.
• Ten categories of service are exempt from the five-year limitation.

The job protection under the Uniformed Services Employment and Reemployment Rights Act (USERRA) applies for up to five years of an employee’s cumulative service with a particular employer.

Ten categories of service are exempt from the five-year limitation, as follows:

1. Service needed beyond five years to complete a period of obligated service. Some military specialties, such as the Navy’s nuclear power program, require initial active service obligations beyond five years.
2. Service from which employees, through no fault of their own, are unable to obtain a release within the five-year limit. For example, the five-year limit will not be applied to members of the Navy or Marine Corps whose obligated service dates expire while at sea. Nor will it be applied when service members are involuntarily retained on active duty beyond the expiration of their obligated service date. This was the experience of some who served in Operations Desert Shield and Storm.
3. Required training for reservists and National Guard members. The two-week annual training sessions and monthly weekend drills required for reservists and National Guard members are exempt from the five-year limitation. Additional training requirements certified in writing are also excluded. These need to be certified by the Secretary of the service.
4. Service under an involuntary order to, or to stay on, active duty during domestic emergency or national security-related situations.
5. Service under an order to, or to stay on, active duty (other than for training) because of a war or national emergency declared by the President or Congress. This includes service not only by those involuntarily ordered to active duty, but also service by volunteers who receive orders to active duty.
6. Active duty (other than for training) by volunteers supporting “operational missions” for which selected reservists have been ordered to active duty without their consent. These operational missions involve circumstances other than war or national emergency. An example of this was U.S. military involvement in support of restoration of democracy in Haiti (“Uphold Democracy”) as well as the operation in Bosnia (“Joint Endeavor”).
7. Those volunteering to support operational missions. Those involuntarily ordered to active duty are covered by the fourth exemption above.
8. Service by volunteers who are ordered to active duty in support of a “critical mission or requirement” in times other than war or national emergency, and when no involuntary call up is in effect. The secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement.
9. Federal service by members of the National Guard to suppress an insurrection, repel an invasion, or to execute the laws of the United States.
10. National Guard service authorized by the President or Secretary of Defense for responding to a domestic (homeland security) emergency.

During leave

• While an employee is on military leave, employers need to realize their obligations
• Employers also benefit from knowing what their obligations do not include.

Employees who are absent from work to serve in the military retain certain employment rights. Some companies provide greater benefits than what is required.

Employers who would like to provide greater benefits or simply learn more about such activities may turn to the Employer Support of the Guard and Reserve (ESGR) (www.esgr.mil), which is a Department of Defense program. It was established to promote cooperation and understanding between reserve members and civilian employers, and to help resolve conflicts that may occur from an employee’s military commitment.

While employees are performing military service, they are entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

Employers may hire workers to replace absent service members, but must reemploy returning service members. To be prepared for this circumstance, it’s a good idea to have a contingency plan in place that contains the following information:

• Whether replacements should be hired,
• How replacements are hired on short notice (for example, through a temporary employment agency), and
• The status of the replacement workers after the service member returns.

Hiring through a temporary employment agency may be advantageous, as the replacement workers hired through the agency would technically be employees of the temp agency.

Leave causing hardship

• Employers may request an adjustment to an employee’s military leave, but the accommodation can only be made at the military’s discretion.
• Employers may not deny a request for a military service absence.

Since employees may take military leave without prior notice, the absence may cause hardship on the company. This has caused some employers to wonder if the leave request could be denied, or if the employee’s absence could be adjusted to a different time frame, especially in cases where an employee volunteers for military duty or volunteers to attend additional training.

While employers may not deny a request for a military service absence, they may request consideration for an adjustment based on hardship caused by the employee’s absence. Whether that request can be accommodated is at the military’s discretion.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) regulation at 20 CFR 1002.104 requires the military authority to consider a hardship request. For situations involving National Guard or Reserve members, it refers to adjusting “scheduled absences,” which is not defined. This may be limited to regularly scheduled training or to situations where an employee’s expected return will be extended to a later date. The regulation offers the following:

• The employee is not required to accommodate the employer’s interests or concerns regarding the timing, frequency, or duration of uniformed service. The employer cannot refuse to reemploy the employee because it believes that the timing, frequency or duration of the service is unreasonable. However, the employer is permitted to bring its concerns over the timing, frequency, or duration of the employee’s service to the attention of the appropriate military authority. Regulations issued by the Department of Defense at 32 CFR 104.4 direct military authorities to provide assistance to an employer in addressing these types of employment issues. The military authorities are required to consider requests from employers of National Guard and Reserve members to adjust scheduled absences from civilian employment to perform service.

This rule mentioned above (32 CFR 104.4) offers guidance in paragraph (o) as follows:

• A designated Reserve component representative shall consider, and accommodate when it does not conflict with military requirements, a request from a civilian employer of a National Guard and Reserve member to adjust a Service member’s absence from civilian employment due to uniformed service when such service has an adverse impact on the employer. The representative may make arrangements other than adjusting the period of absence to accommodate such a request when it serves the best interest of the military and is reasonable to do so.

In other words, if an employee is called for active-duty deployment, an employer’s options may be limited, since it may not be reasonable for the military to accommodate the hardship request. As the regulation notes, the military may make other arrangements than changing the period of absence, although this is not explained, and presumably grants considerable discretion to the military representative. Employers may, however, hope to change an employee’s scheduled absence for training if the training could be provided at a time that would minimize disruption to the company.

If a hardship request is denied (or is deemed inapplicable for the situation), the company would still have to allow the absence. Given the vague nature of the regulations and lack of available guidance, it is difficult to determine when it might apply. Making a request for a hardship exemption would not automatically be deemed an attempt to discriminate based on military service obligations. As long as the request is made in good faith, without intent to discriminate against the employee for service obligations, employers may make the request.

Employers might try contacting the Employer Support of the Guard and Reserve (www.esgr.mil) for more information.

When to return to work

• Employees who complete military duty are to return or reapply to work promptly.
• Application details depend upon the length of the military service.

To qualify for the Uniformed Services Employment and Reemployment Rights Act (USERRA) protections, a service member must be available to return to work within certain time limits. These time limits for returning to work depend (with the exception of fitness-for-service examinations) on the duration of a person’s military service.

After employees are discharged from military service or return from National Reserve or Guard training, they must notify their employer of intent to return to work by either reporting to work or submitting a timely application for reemployment. If employees fail to do so, employers do not have to reemploy them according to the provisions of USERRA.

The reason employees must submit an application is to give notice of their intent to return to work. This notice allows employers to make plans for placing the returning employees in their previous position. In cases where the employee has been absent for a considerable time, employers may have had to move someone else into the job.

The period an individual has to apply for reemployment or report back to work after military service is based on time spent on military duty, not on the category of service performed. Limits for returning to work depend, with the exception of fitness-for-service examinations, on the duration of military service.

Reemployment position

• Employees are to be returned to the position they would have attained without leave.
• Exceptions exist with respect to persons who have a disability incurred in or aggravated by military service.

Employers must give returning employees their former positions (or equivalent positions) and place them at the same seniority, pay, and benefits levels that they would have attained had they not taken the leave (the escalator principle). The basic reemployment protection does not depend on the timing, frequency, duration, or nature of someone’s service as long as the basic eligibility criteria are met. The length of military service can be, however, a consideration.

Employers must also make reasonable efforts (such as training or retraining) to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. If the employee cannot qualify for the escalator position, there are provisions for alternative reemployment positions.

The escalator principle requires that returning employees step back on the seniority escalator at the point they would have occupied if they had remained continuously employed.

The position may not necessarily be the same job the person previously held. For instance, if the employee would have been promoted with reasonable certainty had the person not taken leave, the employee would be entitled to that promotion upon reinstatement.

Employees whose military service lasted 1 to 90 days must be promptly reemployed in the following order of priority:

1. In the job the employees would have held had they remained continuously employed — so long as they are qualified for the job, or can become qualified after reasonable employer efforts to qualify the employees; or
2. If the employees cannot become qualified for the position in (1), in the pre-service position — so long as they are qualified for the job or could become qualified after reasonable employer efforts; or
3. If the employees cannot become qualified for the position in either (1) or (2), in any other position, which is the nearest approximation of (1) for which the employees are qualified, with full seniority.

Employees whose military service lasted 91 days or more must be promptly reemployed in the following order of priority:

1. In the job the employees would have held had they remained continuously employed, or a position of equivalent seniority, status, and pay — so long as the employee is qualified for the job, or can become qualified after reasonable employer efforts to qualify the employee; or
2. If the employees cannot become qualified for the position in (1), in the pre-service position — so long as they are qualified for the job or could become qualified after reasonable employer efforts; or
3. If the employees cannot become qualified for the position in either (1) or (2), in any other position, which is the nearest approximation of (1) for which the employees are qualified, with full seniority.

Returning service members must be “promptly reemployed.” What is prompt will depend on the circumstances of each individual case. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. On the other hand, reinstatement following five years on active duty might require giving notice to an incumbent employee who has occupied the service member’s position and who might possibly have to vacate that position.

Documented proof of service and discharge

• While employers may not ask for documents supporting the leave before it begins, they may ask for it when leave ends.
• Documents may be requested only if leave lasted more than 30 days.

After military leave of more than 30 days, employers may request that the returning employee provide documentation to satisfy the requirement for eligibility for reemployment. The documentation could include the following:

• Department of Defense 214 Certificate of Release or Discharge from Active Duty,
• Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service,
• Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority,
• Certificate of completion from military training school,
• Discharge certificate showing character of service,
• Copy of extracts from payroll documents showing periods of service, or
• Letter from National Disaster Medical System (NDMS) team leader or administrative officer verifying dates and times of NDMS training or federal activation.

The types of documents that are necessary to establish eligibility for reemployment will vary from case to case. Not all documents are available or necessary in every instance to establish reemployment eligibility.

Employers may, therefore, have documentation that should show that:

• The employee’s application for reemployment is timely,
• The employee has not exceeded the five-year service limitation, and
• The employee’s separation from service was other than disqualifying.

If an employee does not provide satisfactory documentation because it’s not readily available or doesn’t exist, employers must still promptly reemploy the person. If, however, after reemploying the person, documentation becomes available that shows one or more of the reemployment requirements were not met, employers may terminate the person. The termination would be effective as of that moment. It would not operate retroactively.

If an employee has been absent for military service for 91 or more days, employers may delay making retroactive pension contributions until the employee submits satisfactory documentation. However, contributions will still have to be made for employees who are absent for 90 or fewer days.

Employers don’t have to reemploy the employee under the Uniformed Services Employment and Reemployment Rights Act (USERRA) in the following circumstances:

• Separation from the service with a dishonorable or bad conduct discharge,
• Separation from the service under “other than honorable” conditions (regulations for each military branch specify when separation from the service would be considered “other than honorable”),
• Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war, or
• Dropping someone from the rolls when the employee has been absent without authority for more than three months or who is imprisoned by a civilian court.

Reasons reemployment may be denied

• The right to reemployment is not absolute.

When company circumstances have changed so extensively that reemployment is impossible, unreasonable, or creates an undue hardship, employers need not reemploy a returning employee.

An “impossible” or “unreasonable” circumstance would be a significant reduction in a company’s workforce. If, for example, the employee’s job has been eliminated and there are no other jobs available, the employer doesn’t have to take the worker back.

If accommodating those with disabilities incurred during military service would cause “undue hardship,” employers are excused from trying to qualify returning service members, or from accommodating those with disabilities.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) defines “undue hardship” as an action that requires a “significant difficulty and expense” when considered in light of the following:

• The nature and cost to the employer;
• The overall financial resources of the facility, including the effect of the action on expenses and resources; and
• The overall financial resources of the employer, including:
  • The overall size of the business, and
  • The number, type, and location of facilities; and
  • The employer’s type of operation or operations and the impact on facility operations.

Reemployment is not required where the position left was for a brief and nonrecurrent period and could not reasonably be expected to continue indefinitely or for a significant period. Employers must prove (not simply assert) the impossibility or unreasonableness, undue hardship, or the brief, nonrecurrent nature of the employment.

If there is a lack of documentation at the time an employee requests return, employers may not use this as a basis to delay or deny reinstatement. If the documentation received later shows that the employee is not eligible for protection under USERRA, the employee may then be terminated at that point. This defense is very limited and narrow in scope — employers may find it hard to prove in a court of law.

Termination

• Employees retain their USERRA protections for a limited period.
• Returning employees may be terminated only for cause.

Returning service members can’t be terminated until a specific period of time has passed. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires that:

• If the employee served 31 to 180 days, then the employee may not be terminated for 180 days after returning to work; or
• If the employee served 181 or more days, then the employee may not be terminated for one year after returning to work.

Employers may terminate a returning service member only “for cause.” Generally, “for cause” is determined by asking two questions:

• Is it reasonable to discharge an employee for the conduct in question?
• Did the employee receive fair notice, expressed or implied, that such conduct could result in discharge?

An example of termination “for cause” would be if an employee was caught stealing.

Employees who serve for 30 or fewer days are not protected from discharge without cause. However, they people are protected from discrimination because of military service or obligation.

Posting requirement

• Employers must post a USERRA notice.

Employers are required to provide to employees entitled to the rights and benefits under the Uniformed Services Employment and Reemployment Rights Act (USERRA) a notice of the rights, benefits, and obligations of such persons and such employers under USERRA.

Employers may provide the notice “Your Rights Under USERRA” by posting it where employee notices are customarily placed. However, employers are free to provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing the notice via electronic mail).

Enforcement

• A Department of Labor agency enforces the USERRA provisions.
• USERRA does not preempt state military leave laws unless the laws provide less protection.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is administered by the Department of Labor, through the Veterans’ Employment and Training Service (VETS). VETS helps those experiencing service-related problems with their civilian employment and informs employers about the Act.

Employees have reemployment rights if they:

• Gave advance notice of the leave,
• Have five or fewer years of military service while with the employer,
• Timely returned to work or applied for reemployment, and
• Are not separated from military service with a disqualifying discharge or under other than honorable conditions.

VETS investigates complaints. Filing of complaints with VETS is optional; employees may freely choose to pursue a claim with private counsel.

Veterans Employment and Training Service (VETS) provides assistance to persons claiming rights under USERRA, including persons claiming rights with respect to the federal government as a civilian employer. USERRA has granted VETS subpoena authority so that it can obtain access to witnesses and documents to complete its investigations in a timely and comprehensive manner.

Employees whose complaints are not successfully resolved by VETS may request that their complaints be referred to the Attorney General for possible representation. If the Attorney General is satisfied that a complaint is meritorious, the Attorney General may file a court action on the complainant’s behalf.

If violations under USERRA are shown to be willful, the court may award liquidated damages. Award of back pay or lost benefits may be doubled in cases where violations of the law are found to be willful. “Willful” is not defined in the law, but in general, a violation is willful if the employer’s conduct was knowingly or recklessly in disregard of the law.

The law, at the court’s discretion, allows for awards of attorney fees, expert witness fees, and other litigation expenses to successful plaintiffs who retain private counsel. Also, the law bans charging of court fees or costs against anyone who brings suit.

State military leave laws

Individual states may have laws providing greater protection than USERRA. If that is the case, USERRA does not preempt those laws, but it does preempt state laws that provide less protection.

USERRA and the Family and Medical Leave Act (FMLA)

• USERRA does not exist in a vacuum; other laws may apply.
• The FMLA and USERRA often interact.

In order to be eligible for leave under the Family and Medical Leave Act (FMLA), employees must meet several eligibility criteria. Two of these criteria affected by the Uniformed Services Employment and Reemployment Rights Act (USERRA) are:

1. The employee must have been employed by the employer for at least 12 months; and
2. The employee must have worked at least 1,250 hours for that employer during the 12-month period preceding the start of the leave.

The requirement of 1,250 hours worked applies to persons employed by private employers, state and local governments, and the Postal Service.

An employee returning after military service is to be credited with the hours-of-service that would have been performed but for the period of military service in determining FMLA eligibility. Accordingly, a person reemployed following military service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1250-hour requirement.

To determine the hours that would have been worked during the period of military service, the employee’s pre-service work schedule can generally be used. For example, an employee who works 40 hours per week for the employer returns to employment following 20 weeks of military service and requests leave under the FMLA. To determine the person’s eligibility, the hours the employee would have worked during the period of military service (20 x 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1,250-hour requirement is met.

Pay during leave

• While not required, employers may choose to pay employees on military leave.
• Employers either pay nothing, pay the full wages, or make up the difference between military pay and the employee’s salary.

Employers are not required to provide any salary or wages to active-duty personnel while on military leave. Employers may, however, voluntarily pay employees during the leave. Some companies make up the difference between military pay and the employee’s salary. Others pay the full amount of wages in addition to the military pay, while some employers pay nothing.

If employers decide to pay wages or salary to service members, there are certain criteria that can be used. Examples could include the following:

• Whether the service is voluntary or involuntary — did employees sign up, or were they drafted or called into active service in the National Guard?
• Is the employee full time or part time?

Employers could have a written policy that allows for salary or wages to be paid to employees who meet certain criteria (for example, those who are full time and whose military service is involuntary). Service members, however, are entitled to other paid leave benefits that are provided to other employees who are on a leave of absence.

The Heroes Earnings Assistance and Relief Tax (HEART) Act gives a tax credit to small businesses (those of 50 employees or less) to encourage them to pay reservists the difference in wages between pay as an employee versus military pay.

Exempt (salaried) employees also have protections under the Fair Labor Standards Act (FLSA). Specifically, the FLSA states that the employer must pay a full week’s salary for salaried employees for the following reasons:

Any week the employee performs any work. Example: An employee goes into work Monday morning and is called up for military service in the afternoon. In this case, the employer needs to pay the employee’s entire salary for the week.

Any week in which the employee is on military leave and performs work for the employer. Example: An employee is assigned to a military base and communicates, by email, with the manager several times each week about work-related issues. Since the employee is technically working for the civilian employer, the employee may be entitled to the salary (in addition to the military pay).

Vacation

• If requested, an employer is required to allow employees on military leave to use vacation or other paid time off, but must not force employees to do so.

Employers may not force an employee to use vacation or other paid time off while on military leave. The employee, however, may ask to use vacation, or other paid leave, and it must be allowed.

Employees may, for example, want to use accumulated vacation to receive health insurance benefits during the vacation period, since they would technically be continuously employed.

Employers should review any related vacation policy, especially if it has a “use it or lose it” provision. Employers may want to change the policy if the review indicates that there is potential for the “use it or lose it” provision to penalize employees who are absent under the Uniformed Services Employment and Reemployment Rights Act (USERRA). If, for example, an employee is away on military duty, the employee would not be able to use accrued vacation and could lose it under the provision.

Health benefits

• Employers must offer group health care continuation benefits to employees on military leave for up to 24 months.
• A fee and the cost of benefits may be charged.
• A notice to the employee must be provided.

Employers must offer employees on military leave group health care continuation benefits similar to those of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). This benefit must be offered for 24 months, and employers may charge the service member as much as 102 percent of the cost of coverage. (The 102 percent figure consists of paying for all of the coverage and a two percent administrative fee.)

In addition, the Health Insurance Portability and Accountability Act (HIPAA) gives the departing employee, and the employee’s family, the right to enroll in another health insurance plan immediately, regardless of the plan’s enrollment period.

If the employee’s military leave lasts for less than 31 days, employers must continue to pay the company’s portion of the premium. Generally, employees would pay their portion of the premium.

When an employee returns from service, employers must reinstate health insurance coverage without any waiting period or exclusions for preexisting conditions, unless there would have been waiting periods that would have applied even if the employee had not been absent for uniformed service. This rule does not apply to the coverage of any illness or injury incurred in, or aggravated during, performance of service in the uniformed service.

The employee needs to receive a notice explaining the employee’s rights under the plan.

Retirement benefits

• In most cases, employers must treat retirement benefits for employees on military leave the same as if the employee had been working.

Employers may not consider military service as a reason not to pay retirement benefits. Accrual and vesting must occur as if the employee had been working.

Employers are not required to make contributions to 401(k) plans while the employees are on military leave. Once employees return from military duty and are reemployed, however, they must make the employer contributions that would have been made if the employees had been employed during the period of military leave. If employee contributions are required or permitted under the plan, the employee may take up to three times the duration of the military duty or five years, whichever ends first, to make up the contributions.

If, for example, a person was in military service for one year, as soon as the person returns and is reemployed, payments to the retirement plan resume. This employee then has up to three years to make payments to make up for the one-year lapse.

If the employee makes up the contributions, the employer must make up any matching contributions. Employer contributions do not have to include earnings or forfeitures that would have been allocated to the employee if those contributions had been made during military service.

To determine the liability or an employee’s contributions under a pension benefit plan, base the employee’s compensation during the period of the employee’s military service on the rate of pay the employee would have received but for the absence during the leave.

Under the Honoring Existing Retirement Obligations for Every Servicemember (HEROES) Act, when a service member dies while on active duty, employers are required to treat the day prior to the date of death as the date the employee returned to work for purpose of triggering payment of survivor benefits or other beneficiary payments under the employee’s pension plan.

Military duty by number of days

• The number of days an employee is absent due to training or military duty affect what is required for reemployment.

What actions an employee must take for reemployment when returning from training or military duty are governed by guidelines based on the number of days of military duty.

Military duty of fewer than 31 days (1 to 30 days)

When an employee is absent due to training or military duty for less than 31 days, the returning employee doesn’t have to submit an application for reemployment. The employee must report to work by the beginning of the first regularly scheduled workday that would fall eight hours after the employee returns home.

Employers may not, for example, require a service member who returns home at 10:00 p.m. to report to work two and a half hours later at 12:30 a.m. However, they may require the employee to report for the 6 a.m. shift the next morning.

If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible.

The time limit for reporting back to work for an employee who is absent from work in order to take a fitness-for-service examination is the same as the one above for employees who are absent for 1 to 30 days. This period will apply regardless of the length of the employee’s absence.

Military duty between 30 and 180 days

For military duty that lasted 31 to 180 days, employees must submit an application for reemployment to the employer no later than 14 days after completion of the military service. If submission of a timely application is impossible or unreasonable through no fault of the person, the application must be submitted as soon as possible on the next day when submitting the application becomes possible.

Military duty of more than 180 days

If the period of service was for more than 180 days, the application for reemployment (written or verbal) must be submitted within 90 days after completion of service.

A person’s reemployment rights are not automatically forfeited if the person fails to report to work or to apply for reemployment within the required time limits. In such cases, the person will be subject to the employer’s established rules governing unexcused absences.

If an employee is hospitalized or convalescing because of an injury or illness occurring or aggravated during military service, the reporting or application deadlines are extended for up to two years. If circumstances make reporting within the two-year period impossible or unreasonable, the two-year period will be extended by the minimum time required to accommodate the employee.

Retraining

• Employers are required to retrain employees returning from military leave.

Refresher training is required for returning employees who need it. Employers must help returning employees qualify to return to a job they would have held, or one that nearly approximates it.

For example, an employee works in a warehouse, manually tracking outgoing orders. The employee is called up for military duty and is away from work for six months. While the employee is gone, the warehouse is converted to computerized order tracking. When the employee returns to work, the employee must be trained in how to operate the computer tracking system and given the previous job back.

After the training, if the employee can’t perform the job, the employee must be placed in a position of equal seniority, status, or pay.

Conflicting reemployment claims

• In conflicting reemployment claims, employers must give the position to the person who first left it.

If two or more employees are entitled to reemployment in the same position, the following reemployment scheme applies:

• The employee who first left the position has the superior right to it.

The employee without the superior right is entitled to employment with full seniority in any other position that provides similar status and pay in the order of priority under the reemployment scheme otherwise applicable to the employee.

Disabled employees

• Employers must follow a three-part reemployment process for employees returning from military duty who are injured and become disabled.

If an employee is injured during military service and becomes disabled, the employer must make reasonable effort to accommodate the disability. If that’s not possible, the employee must be employed in a position of equal seniority, status, and pay.

If the employer can’t do that, the worker must be employed in a position consistent with the employee’s limitations that most nearly matches the previous position in terms of seniority, status, and pay.

Because of these special requirements, the Uniformed Services Employment and Reemployment Rights Act (USERRA) offers the disabled veteran greater protection than that offered by the Americans with Disabilities Act (ADA). The ADA doesn’t mandate job transfers where an employee is not qualified to perform the essential functions of a position, with or without reasonable accommodations.

Employers may have employees who were injured or contracted an illness while in military service and covered under USERRA. Often, these employees need rehabilitative care or therapy. Those medical services would be covered under the Veterans Healthcare System, which is part of the Veterans Health Administration.

The following three-part reemployment process is required for employees with a disability incurred during service:

1. The employer must make a reasonable effort to accommodate the employees’ disability so that they can perform the duties of the position that the employee would have held if they had remained continuously employed.
2. If, despite reasonable accommodation efforts, the employees are not qualified for the position in (1) due to their disability, the employees must be reemployed in a position of equivalent seniority, status, and pay — so long as the employees are qualified to perform the duties of the position, or could become qualified to perform the tasks with reasonable employer efforts.
3. If the employees do not become qualified for the position in either (1) or (2), they must be employed in a position that, consistent with the circumstances of that case, most nearly approximates the position in (2) in terms of seniority, status and pay.