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