Time spent on military leave counts toward FMLA eligibility
The federal Family and Medical Leave Act (FMLA) regulations are filled with little nuggets of information that most employers likely don’t know about because they’ve never come across a particular related situation. Such is the case for the regulation at 825.110(c)(2), that points out rather clearly, that time employees spend on military leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA) is counted toward an employee’s eligibility to take FMLA leave.
To be eligible to take FMLA leave, employees must:
- Have worked for the employer for at least 12 months (need not be consecutive),
- 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.
When figuring out the employee's eligibility for FMLA-qualifying leave, employers must credit an employee returning from USERRA-covered military service with the hours of work they would have performed if they had not been absent from work due to or needed by USERRA-covered service.
Employers must also count the time off for military duty in determining whether the employee has been employed for at least 12 months.
Therefore, someone reemployed following USERRA-covered service has the hours they would have worked added to any hours actually worked during the previous 12-month period to meet the hours-of-service requirement, as well as the 12-months worked requirement.
To figure out the hours that would have been worked during the period of absence from work due to or caused by USERRA-covered service, employers are to use the employee's pre-service work schedule for calculations.
The general USERRA provisions
The USERRA applies to employees who serve in all categories of military training and service, including:
- Duty performed on a voluntary or involuntary basis in time of peace or war,
- National guard and reserve duty, and
- Service in the active components of the Armed Forces.
Take, for example, an employee, who normally works a 40-hour week, and takes time off beginning November 5, 2023, to serve a tour of military duty, and is reemployed on June 10, 2024. On July 1, 2024, the employee begins FMLA leave, when he has only 840 hours worked in the 12 months before the leave request (18 weeks before the military service and 3 weeks after reemployment, at 40 hours per week). If the employee is otherwise eligible for FMLA leave, the 1,240 hours that he would have worked but for his military leave (31 weeks at 40 hours per week) must be added to the 920 hours actually worked, for a total of 2,080 hours for FMLA eligibility.
Employees must have worked at least 1,250 hours in the 12 months before leave is to begin for eligibility. This employee would meet this requirement.
Key to remember: If employees return from military service, employers must add the time spent during the military service to the 1,250 hours worked and 12 months worked FMLA eligibility criteria.
