On a day when Helen had a full schedule, one of her appointments was with Andrew, a good employee who had progressed well in the company for over five years with no problems.
When Helen talked to Andrew, she was surprised to learn that Andrew had recently enlisted in the Army Reserves and could be called to serve, particularly in places that experienced emergencies like earthquakes.
Andrew played an important role in his department; losing him, even if only temporarily, could be challenging for the company. Helen asked that Andrew keep her informed of the situation, and she began to think of how to respond.
This scenario is not an unusual one for HR offices across the country. According to the U.S. Department of Defense, more than 1.2 million Americans are active in military service. Many of these people left civilian careers on a temporary basis to serve their country. More than 11,000 civilians serve in the Army Reserves alone. Others are military career professionals. Most have some tie with the American workforce.
When an employee’s work is interrupted by military service—whether his or her own military service or that of a family member—how employers respond will depend on the specifics involved, such as who is actually serving. Laws, including the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA) are also involved.
USERRA protects the rights of persons who voluntarily or involuntarily leave employment positions to perform military service. It applies to all employers and employees. The law has no employer coverage or employee eligibility criteria that need to be met.
USERRA affects employment, reemployment and retention in employment, and employers may not discriminate against those who serve in the military because of such service—past, present or future.
Therefore, if an employer learns, as Helen did, that an employee may need time off to serve, it cannot terminate or otherwise take a negative employment action against that employee because of the service. In addition, if applicants for employment indicate that they may serve or have served, this cannot be held against them.
When an employee lets an employer know about the need for military leave, the employer does not have the right to require documentation supporting the need for leave. Many employees will provide it; however, there may be situations in which employees do not have such documentation. Employees must provide notice, but it may be verbal or written and may be informal. It does not need to follow any particular format.
Therefore, using the opening story, Helen could not require Andrew to provide documentation, such as orders, before leave was to begin. Andrew would need to let Helen know about the service and leave, and would need to do so as far in advance as is reasonable. The law does not provide a time frame in which employees are to provide notice, however. The Defense Department strongly recommends that advance notice be provided at least 30 days before leave, when it is feasible to do so.
While employees are on military leave, they can be characterized in any way, but they will be deemed to be on a furlough or leave of absence. This means employees are entitled to the non-seniority rights and benefits generally provided by the employer to other employees with similar seniority, status and pay that are on furlough or leave of absence.
One of the basic rights under USERRA is reemployment after an absence for military service. Employees need to meet all of the following requirements to obtain this right, however:
• The employer had applicable advance notice of the employee’s service, when practicable.
• The employee had five years or less cumulative military service during the employment relationship with a particular employer.
• The employee returns to work or applies for reemployment in a timely manner.
• The employee has not been separated from service with a disqualifying discharge or under other than honorable conditions.
Employers must return such employees to a position they would have achieved with reasonable certainty if not for the taking of military leave. If leave exceeded 30 days, employers may ask for documentation establishing the last three points above.
Under USERRA, if an employee has a disability incurred in or aggravated during the period of service, employers must make reasonable efforts to accommodate that disability even if the service-connected disability does not necessarily meet the ADA’s definition of “disability.” In addition, employers must help the veteran become qualified to perform his or her reemployment position whether or not the veteran has a service-connected disability requiring reasonable accommodation. This latter provision is beyond what the ADA generally requires.
The deadline for reinstatement may be extended for up to two years for employees who are recovering from a disability incurred or aggravated during military service.
Leave taken under USERRA is to be counted as if the employee worked during the military leave for purposes of FMLA leave eligibility.
A reemployed service member would be eligible for FMLA leave if the number of months and hours worked during employment, combined with the number of months and hours the employee would have worked during military leave, meet the FMLA’s eligibility criteria. That is, time spent on military leave is to be credited toward FMLA eligibility.
In general, the FMLA provides for job-protected leave for qualifying reasons. While USERRA provides military leave for employees, the FMLA provides leave for employees whose family members serve in the military.
Employees eligible for FMLA leave may take such leave because of a qualifying exigency caused by a family member’s covered active duty or call to such duty. Eligible employees may also take FMLA leave to care for a family member’s serious injury or illness caused or aggravated by military duty.
Eligible employees may take up to 12 weeks of FMLA qualifying exigency leave while their spouse, child or parent is on or called to active duty. Leave may be taken for the following reasons:
• To address issues because of a short-notice deployment (employees may take up to seven days for this reason).
• To attend official events related to the duty or support/assistance programs sponsored by the military.
• To arrange for alternative child care when the duty necessitates a change.
• To make or update financial or legal arrangements to address the service member’s absence.
• To attend counseling necessitated by the duty.
• To spend time with a service member who is on short-term rest and recuperation leave (employees may take up to five days for this reason).
• To attend post-deployment events sponsored by the military (employees may take up to 90 days after the service ends).
Caring for a Military Family Member
Eligible employees may take up to 26 weeks of leave to care for a spouse, child, parent or next of kin who incurred a serious illness or injury in the line of duty or had an injury/illness aggravated by military duty.
In addition to leave because of a family member’s military activity, an employee may have a serious health condition incurred while serving in the military and may be entitled to take time off to care for this condition after returning from military service. Such a condition may also be a disability under the ADA.
Both USERRA and the ADA include reasonable accommodation obligations, as indicated earlier, but the ADA prohibits discrimination on the basis of a disability. Employers must provide reasonable accommodation to the known disability of employees or applicants. Employees returning from military service may need such accommodations. In some cases, leave beyond what other laws provide can be a reasonable accommodation.
Employees may also need other types of accommodations, and much will depend on the specifics involved. The ADA requires that employers engage in the “interactive process” when they become aware of a need for an accommodation. During this process, the employer and the employee discuss the situation with a focus on what accommodations will be effective and reasonable. Employers do not, however, need to provide accommodations for a family member of someone with a disability.
When employees need time off to serve in the military, take care of issues caused by a family member’s military service, care for family members injured or made ill by military service, or when military service caused a serious health condition or disability, employers need to understand the applicable laws. In addition to USERRA, the FMLA and the ADA, there may also be state laws to consider. The interplay between these laws will affect how employers respond to requests for leave. Despite complexity, such laws were designed to support those who are called to serve their country.
Darlene M. Clabault, PHR, is a senior editor–HR at J. J. Keller & Associates Inc., where she writes about employment laws. She is the editor of FMLA Revealed: Understanding Leave Requirements and the ADA Compliance Manual. She is also the vice president for legislative issues for the Fox Valley SHRM chapter in Wisconsin.
Survey Looks at Recruiting, Hiring of Veterans, SHRM Online Staffing Management Discipline, June 2010
Supreme Court Will Review ‘Cat’s Paw’ Theory in USERRA Case, SHRM Online Legal Issues, April 2010
USERRA Rehire Obligation Varies After Layoffs, SHRM Online Legal Issues, March 2010
Companies Help Veterans Adapt to Civilian Workplace, SHRM Online Employee Relations Discipline, November 2009
FMLA: Eligibility: How do the FMLA military expansion provisions affect USERRA and military leaves?, SHRM HR Q&As, February 2009
The USERRA Regulations Deconstructed, SHRM Legal Report, March–April 2006
SHRM Online Benefits Discipline