Managing Military Leave and Military Family Leave

May 17, 2019
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Scope—This article provides an overview of legal requirements and practical issues associated with leave for military service ("military leave") and leave for military family members ("military family leave").  To the extent that the federal Family and Medical Leave Act (FMLA) is implicated, this article refers to but does not discuss FMLA compliance in depth.


Overview

Greater demands than ever before are being put on U.S. military service persons—whether active duty, reserve or National Guard. The United States has had hundreds of thousands of troops deployed in combat in Afghanistan and Iraq for longer than the duration of World War II. These deployments have relied heavily on Reserve and National Guard troops drawn out of civilian jobs. The larger "war against terrorism" has no foreseeable end; moreover, hardly a month goes by without a state governor calling on National Guard units to respond to a natural disaster somewhere in the United States.

Meanwhile, the U.S. Congress and several states have enacted leave laws that recognize and address the impact of military service on both service members and their families. Employees' active duty military service also affects their employers and their co-workers.

This article is meant to support employers' compliance with applicable leave laws and to help them address associated workplace issues. It discusses the following topics:

  • Federal and state military leave and military family leave statutes.
  • Practical application of these laws, including the obligations of employers and employees before, during and after military leave.
  • Aspects of military-related leave relating to employee relations involving both the person on leave and the employees not on leave.
  • Compensation and benefits issues associated with military-related leave.

Federal Statutes

In 2008 the Family and Medical Leave Act (FMLA) was amended to provide employees with family members serving in the armed forces, National Guard and Reserves with FMLA leave for reasons related to their family members' military service. In 2010 the FMLA was again amended, expanding the military-related leave protections.

The major provisions of the amendments included:

  • Defining a covered veteran, consistent with statutory limitations, as limited to veterans discharged or released under conditions other than dishonorable five years prior to the date the employee's military caregiver leave begins.
  • Creating a flexible definition for serious injury or illness of a covered veteran that includes four alternatives, only one of which must be met.
  • Permitting eligible employees to obtain certification of a service member's serious injury or illness (both current service members and veterans) from any health care provider as defined in the FMLA regulations, not only those affiliated with the U.S. Department of Defense (DOD), the U.S. Department of Veterans Affairs (VA), or TRICARE networks (as was permitted under the 2009 regulations).
  • Extending qualifying exigency leave to eligible employees who are family members of members of the regular armed forces and adding the requirement for all military members to be deployed to a foreign country to be on "covered active duty" under the FMLA.
  • Increasing the amount of time an employee may take for qualifying exigency leave related to the military member's rest and recuperation (R&R) leave from five days to up to 15 days.
  • Creating an additional qualifying exigency leave category for parental care leave to provide care necessitated by the covered active duty of the military member for the military member's parent who is incapable of self-care. The U.S. Department of Labor (DOL) has defined "qualifying exigencies" as any of the following:
    • Short-notice deployment, military events and related activities.
    • Child care and school activities.
    • Financial and legal arrangements.
    • Counseling.
    • Rest and recuperation.
    • Post-deployment activities.

Creating military caregiver leave for a veteran

Many FMLA forms exist both to accommodate the military leave situations and to better administer traditional family and medical leaves.

  • Form WH-380-E is for a health care provider to certify an employee's own serious health condition.
  • Form WH-380-F is for a health care provider to certify the serious health condition of a covered family member.
  • Form WH-381, the new notice of FMLA eligibility, rights and responsibilities, reflects that employers now must designate leave as FMLA leave within five business days of the employee notifying the employer of the need for FMLA leave, rather than two days as required previously.
  • Form WH-382 is used to notify the employee when leave is designated as FMLA leave.
  • Form WH-384 pertains to certification of a "qualifying exigency" for military family leave.
  • Form WH-385 may be used to support a request for leave to care for a covered service member with a serious injury or illness.
  • Form WH-385-V may be used to support a request for leave to care for a covered veteran with a serious injury or illness.

The discussion below is generalized. For detailed guidance regarding these laws, view the references that are hyperlinked in context.

USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that establishes various rights and benefits for employees and applicants for employment who have served in the military or have engaged in other forms of protected governmental service. USERRA requires employers to provide leaves of absence and to re-employ workers who enter military service while employed.

See:

Military Leaves of Absence and Reemployment Rights (see Employer Resource Guide)

Leave Benefits: Military: Do USERRA regulations cover reserve duty, voluntary service and training?

USERRA applies to all employers, regardless of size, and to all regular employees, regardless of position, length of service or full- or part-time status. It regulates leaves of absence taken by members of the uniformed services, including reservists, and by National Guard members for training, periods of active military service (whether voluntary or involuntary) and funeral honors duty, as well as for time spent being examined to determine fitness to perform such service.

USERRA provides four important benefits related to military leave:

  • Protection from discrimination based on military service.
  • Protection from termination for a period of time after returning from service.
  • The right to re-employment on conclusion of military service.
  • Certain rights in connection with pensions and other employee benefits plans.

The nature of the position the returning employee is entitled to depends on the duration of the military service. Generally, after service of 90 days or less, the employee is entitled to return to the same position or the position he or she would have attained but for taking leave. The returning employee is entitled to all pay increases, seniority increases and other benefits that would have been earned but for the absence. This is sometimes referred to as the "escalator principle."

For employees returning from leaves longer than 90 days, employers may consider other positions that closely approximate the job an employee would have held or attained in terms of seniority, status and pay.

The re-employment obligation has three exceptions:

  • The employer's circumstances have changed as to make such re-employment impossible or unreasonable.
  • Re-employment would impose an undue hardship on the employer.
  • The employment was for a brief, nonrecurring period with no reasonable expectation that such employment would continue indefinitely or for a significant period.

Subject to certain exceptions, an employee must meet several eligibility requirements to attain re-employment rights:

  • The employee must give notice of the need to leave for military service. The notice may be oral; employers are not permitted to demand written notice.
  • The employee must have been released from service under honorable conditions.
  • The employee must not exceed five years of military leave with any employer (some exceptions apply). Annual training and monthly drills do not count against the cumulative total.

For additional information on USERRA compliance, see:

Employer Support for the Guard and Reserve: USERRA FAQ

U.S. DOL: USERRA Advisor

The FMLA and military-related leave

The FMLA generally provides qualifying employees of covered employers up to 12 weeks of unpaid leave per year to care for their own or a family member's serious medical condition. FMLA leave is available to employees who have worked 1,250 hours in a 12-month period within 75 miles of a site having at least 50 employees. See U.S. DOL: Family and Medical Leave and U.S. DOL Fact Sheet #28A: Employee Protections under the Family and Medical Leave Act.

National Defense Authorization Act of 2010

On October 28, 2009, the president signed into law the National Defense Authorization Act of 2010 (NDAA). Section 565 of the 2010 NDAA amended the FMLA. These amendments expanded the military family leave provisions added to the FMLA in 2008, which provide qualifying exigency and military caregiver leave for employees with family members who are covered military members.

The 2010 NDAA amendments to the FMLA provide that an eligible employee may take FMLA leave for any qualifying exigency arising out of the fact that the employee's spouse, son, daughter or parent is on (or has been notified of an impending call to) covered active duty in the armed forces. "Covered active duty" for members of a regular component of the armed forces means duty during deployment of the member with the armed forces to a foreign country. "Covered active duty" for members of the reserve components of the armed forces (members of the U.S. National Guard and Reserves) means duty during deployment of the member with the armed forces to a foreign country under a call or order to active duty in a contingency operation as defined in 10 U.S.C. §101(a)(13)(B). (Prior to the 2010 NDAA amendments, qualifying exigency leave did not apply to employees with family members serving in a regular component of the armed forces, and there was no requirement that members of the National Guard and Reserves be deployed with the armed forces to a foreign country.)

The 2010 NDAA also expanded the military caregiver leave provisions of the FMLA. Military caregiver leave entitles an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member to take up to 26 workweeks of FMLA leave in a single 12-month period to care for a covered service member with a "serious injury or illness." Under the 2010 NDAA amendments, the definition of "covered service member" is expanded to include a veteran "who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness" if the veteran was a member of the armed forces "at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy." (Prior to the 2010 NDAA amendments, military caregiver leave was limited to care for current members of the armed forces, including regular components and National Guard and Reserves.)

In addition, the 2010 NDAA amended the FMLA's definition of a "serious injury or illness." For a current member of the armed forces, the definition is amended to include not only a serious injury or illness that was incurred by the member in line of duty on active duty but also a serious injury or illness that "existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces" that may render the member medically unfit to perform the duties of the member's office, grade, rank or rating. For a veteran, a serious injury or illness is defined as "a qualifying injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran." The 2010 NDAA directs the secretary of labor to define "qualifying injury or illness" of a veteran. See FMLA: Eligibility: What is military caregiver leave, and who is eligible to take it?

The combined result of USERRA and the FMLA

Together, USERRA and the FMLA create four different types of legally protected leave:

  • Military leave for the affected employee.
  • Military family leave for the employee who has a family member affected by military leave.
  • Medical leave for the affected employee.
  • Family medical leave for the employee having a medically affected family member.

In addition, both USERRA and the FMLA create post-leave job protections, although USERRA job protections differ substantially from FMLA job protections in terms of the escalator principle and otherwise. Both USERRA and the FMLA have anti-discrimination and anti-retaliation provisions.

State Statutes

All 50 states have laws governing military leave in some fashion. The state laws vary widely among themselves and in comparison, with the federal leave laws. In addition, several states have statutes governing family military leave similar to that provided by the 2008 FMLA amendment and its regulations.  Employers should make themselves aware of all applicable laws and take care to provide the greater benefits if the laws differ.

Before Leave Is Requested

As a strategic matter, employers are advised to create a comprehensive plan for dealing with leaves related to military service. This plan should take the following into account:

  • Compliance with all applicable laws.
  • The main source of the organization's revenue.
  • Whether the organization's primary place of business is in a "military town."
  • Possible actions beyond those required by law.
  • Cost-benefit analysis.

Compliance readiness

To respond effectively to a request for military leave or military family leave, organizations should prepare themselves before such a request is submitted.

  • Determine applicable law. On one extreme, an organization might be subject only to USERRA and one state law. On the other extreme, an employer might be subject to USERRA, the FMLA, multiple state laws and even municipal laws.
  • Develop policies and procedures in alignment with the organization's plan.
  • Create forms for employee use that comply with applicable laws and elicit the information needed to support continued compliance.
  • Seek legal review of policies, procedures and forms by qualified employment counsel.
  • Communicate policies and procedures by means of handbooks, memos, intranet postings, and manager and employee training.
  • Post required notices. See Employee Rights and Responsibilities Under the Family and Medical Leave and Your Rights Under USERRA, the Uniformed Services Employment and Reemployment Rights Act.

Doing well by doing good

In addition to merely complying with the law, employers can take steps to do more and to communicate their support for service members and their families both internally and externally. First, organizations should assess the internal and external climate for doing more than the law requires. For example, although not required to do so, many private employers pay the difference between an employee's regular salary and his or her military pay as a matter of patriotism and corporate values. Many large firms also report offering benefits that exceed USERRA requirements.

Business leaders should work with their organization's public and community relations, communications, and human resource departments to plan how to communicate with the press, absent employees' families and local veterans' organizations in ways that enhance the employer's visibility and credibility in the marketplace. Some employers find that revenues actually increase during the time that several key staff members are performing uniformed service.

See:

During Military-Related Leave

Employers must deal with various consequences of having employees out on military leave or military family leave.

Getting the work done

While an employee is on military or military family leave, the work continues and the regular job must be done. Some employers use the services of temporary employees to meet their immediate needs, whereas others hire regular replacements. Organizations that perform sensitive or classified work may be unable to use temporaries if the work requires a security clearance. In these cases, the employer may simply have to increase the workload of the remaining employees or temporarily reassign employees to meet the unfilled requirements.

Out of sight, not out of mind

To the extent possible, and with due regard to privacy concerns, employees should keep employees informed about the status of a worker on military leave or military family leave. A service member or family member out of sight should not be out of mind. Similarly, the worker on leave should be apprised of developments in the workplace via correspondence. An occasional "care package" from the employer, no doubt, would be greatly appreciated.

In the event of death

If a worker or the family member of a worker on leave is killed in action, organizations may want to consider doing something special to acknowledge the service member's ultimate sacrifice—perhaps an organizational moment of silence, a donation to an appropriate organization or an additional day of paid funeral leave for employees who wish to attend the funeral.

After Military Leave

Employers should welcome returning service members and their family members and affirm their contributions. In addition, organizations should support them with patience, encourage them to reengage and give them opportunities to succeed. Managers should work with HR to discuss how the returning employees will transition back into the workforce. After spending time in a war zone, the service member might find civilian work to be rather mundane. Returning family members will also have adjustment issues, especially if their relative was killed or seriously injured.

Re-employment

Bearing in mind USERRA's so-called escalator principle, the employer must re-employ returning service members in the job that they would have attained had they not been absent for uniformed service. This may require training the returning employee to function in a new position. Employees returning from USERRA leave must also receive the seniority, status, pay and other benefits to which they would have been entitled had they not gone on leave to perform uniformed service.

Employees returning from military family leave have the same re-employment rights as others returning from FMLA leave. See FMLA Regulation §825.214—Employee right to reinstatement.

Reorientation

Employees returning from a leave may need to be reoriented to the organization just as would a new hire. Depending on the length of the leave, a great deal may have changed during the employee's absence. There may be new policies and procedures in effect. New workers may have been hired, and others may have resigned or have been fired or laid off.

Any returning employee may need training to use new technology. Returning service members may come back with additional skills, including leadership competencies. Employers should find out if that is the case and attempt to tap into those individuals' enhanced capacity. Military personnel will also be accustomed to working at a very high, intense level. Organizations can take advantage of the renewed sense of confidence and vigor a returning service member may have for the job.

Disability accommodation

Employers must be prepared to accommodate the returning service member on request if he or she returns with a disability. In that process, employers must comply with the Americans With Disabilities Act (ADA) and state disability discrimination laws, as well as with USERRA. Under USERRA, for example, if the employee cannot perform the particular job to which he or she is entitled to upon return, the employer must provide the nearest approximation to the previous job in light of the limits of the disability. USERRA does not obligate employers to re-employ, employ or otherwise accommodate employees with disabilities if the accommodation would impose an undue hardship on the employers.

A disability need not be physical in nature. Some returning service members may have symptoms of post-traumatic shock or stress, for example. Common responses seen in these individuals include anger, depression, increased use of alcohol or drugs, difficulty with interpersonal relationships and reminders of trauma, such as nightmares and flashbacks. Symptoms may not appear until weeks or months after the vet returns. An organization's employee assistance program (EAP) should be equipped to assist in such circumstances.

Employee Relations Issues

Reintegrating returning service members or their family members into the workforce may involve some employee relations challenges. The better prepared the organization is to recognize these potential issues, the more likely the organization will respond appropriately.

To help returning service members successfully resume their civilian work identity, organizations may want to consider the following general suggestions from an EAP provider:

  • Provide emotional support as needed, and keep lines of communication open. Be the first to reach out.
  • If the employee seems to want to discuss the tour of duty, ask about it. Sometimes talking about and describing an event or situation is helpful.
  • If the employee seems to prefer not to talk, respect the individual's privacy.
  • Believe the employee; the stories may be unlike anything you have heard before and nothing you are likely to experience firsthand.
  • Understand that people adjust on different schedules. Patience goes a long way.
  • Recognize that the employer or manager does not have to, and may not be able to, solve all problems.
  • Be attuned to the possibility that the individual may need more than a friend or family member to talk to; he or she may benefit from professional help such as an EAP.

Dealing with conflict

Workplace conflicts that involve returning service members are not uncommon. They are a consequence of differences between military and civilian environments: The battlefield requires split-second decisions, while in the business world, a slower approach may be the norm. That contrast can be frustrating to the returning employee. Organizations may want to arrange for some preventive coaching in this regard even before problems arise.

Emotional ups and downs

Just as returning service members reunite with their families, they reunite with their "work families." Their business homecoming may involve a lot of emotion, pats on the back, the telling of war stories and so on. At some point—perhaps a month or two after returning—the warm welcome becomes history, the employee settles into the workplace routine and reality sets in. That is when the employer should be attuned to how the employee is adjusting to post-combat work life. Returning family members will also have emotional peaks and valleys; employers should be mindful of their needs as well.

Hostility or harassment

Unfortunately, in lieu of an enthusiastic welcome back, some returning service members may be greeted with open hostility. Organizations should take care not to let anti-war sentiment be inflicted on a returning service member. Not only would this be extremely inappropriate in the workplace, but it might even constitute unlawful harassment.

Compensation and Benefits Aspects of Military Leave

Military leave raises a number of issues in the realm of compensation and benefits. As a general principle, USERRA prohibits employers from discriminating in pay and benefits against those on military leave in comparison with those on other forms of leave. For compensation and benefits purposes, military family leave is treated the same as other FMLA leave.

Compensation

Both USERRA and the amended FMLA provide for unpaid leave. Nevertheless, employers do have to grapple with various pay issues in this context.

Fair Labor Standards Act (FLSA) issues. FLSA regulations prohibit employers from docking an exempt employee's pay for absences due to military leave in any workweek in which the employee performs any work for the employer. That is, exempt employees must be paid their full salary (minus military pay) for any workweek in which they take military leave and also perform any work for the employer. Employers that fail to comply risk converting the exempt employee into a nonexempt employee, thus becoming liable for overtime pay.

For FLSA purposes, employees on military family leave are treated the same as any other employee on FMLA leave. See Do I have to pay an employee on military leave? Can I require him or her to use paid time off/vacation time?

Discretionary pay. Many employers choose to make up the difference between civilian pay and military pay. Employers cannot deny military leave based on whether an employee's service is voluntary or involuntary, but they have far greater flexibility when it comes to compensation. In fact, federal law allows employers to make discretionary payments based on various factors, including the following:

  • Whether service is voluntary or involuntary.
  • Whether an employee is exempt or nonexempt.
  • Whether an employee is full time or part time.

According to the 2015 SHRM Benefits Research Report, 23 percent of surveyed employers provide paid military leave, and 27 percent provide paid family leave.

Benefits issues

Both USERRA and the amended FMLA provide varying degrees of benefits protection for employees on mandated leave. See How to Develop and Administer Military Benefits.

Health insurance. As a general rule, employers do not have to pay the cost of health insurance for employees on military leave, but if the leave is for fewer than 31 days, the employer must continue to pay at least its portion of the premium. Service members continue to pay their portion unless the employer chooses to do so. For longer leaves, employees have COBRA rights and can be required to pay the full cost of their continued participation in the employer's plan. However, if an employer pays the cost of coverage (in whole or in part) during other nonstatutory leaves, it probably must do the same for military leave. See Must an employer continue health care benefits for employees on military leave? and How must benefits be reinstated for an employee returning from a long-term military leave?

For employees on military family leave, employers must comply with the usual FMLA rules on this issue.

Flexible spending accounts. The Heroes Earnings Assistance and Relief Tax (HEART) Act of 2008 (H.R. 6081) generally waives the "use it or lose it" rule that applies to health care flexible spending accounts, allowing military reservists called to active duty to receive distributions from unused funds without penalty.

Vacation. Because employers can require employees on FMLA leave (including military family leave) to use their vacation days, some employers mistakenly assume they can do the same for those on military leave. However, whereas employees on military leave have the right to use their vacation pay, they cannot be required to do so. Whether an employee earns additional vacation or other paid-time-off benefits during military leave depends on how the benefits are earned and how the employer treats them under other leave policies.

Retirement. For purposes of the employer's retirement plan, military leave is not considered a break in service. As a result, employees cannot forfeit any benefits accrued prior to their military service. In terms of employer contributions, an employer's obligations differ depending on whether the retirement plan is a defined benefits plan or a defined contribution plan.

Family-friendly benefits. When one spouse is called to active duty, the remaining spouse will have to carry more responsibility in the home. Employers can help out by offering flexible work arrangements (in addition to those mandated by the FMLA amendment that established military family leave) or child care benefits. See Managing Flexible Work Arrangements.

Other benefits. Life insurance and long-term disability insurance are also important to military families. Employers should ensure their affected employees know what benefits they have.

Templates and Tools

Military Leave Insurance Continuation Letter

Military Leave: Notice

FMLA: Servicemember's Family Member Leave Request & Response

Military Leave of Absence

America's Heroes at Work – Hiring Veterans, A Step-by-Step Toolkit for Employers

Government agencies

U.S. Department of Labor

Organizations

Employer Support of the Guard and Reserve


 




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