As US Troops Head to Europe, Employers Should Review Military Leave Policies | Akerman LLP – HR Defense

Following the recent invasion of Ukraine, more US troops are being deployed to Europe to support NATO countries. Among these are members of the National Reserve and National Guard, who generally maintain civilian jobs throughout the year, but may be called to work at any time. With this in mind, now is a good time for U.S. employers to review their military leave policies to ensure they are fully compliant and tailored to better support employees who must be absent from work due to a deployment.

military leave

The primary federal laws relating to military leave are the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA) and the Family and Medical Leave Act (FMLA). Although different, the two protected leaves apply not only to actual service members, but also to family members who are affected by the employee’s military leave.

USER

USERRA requires all employers (regardless of size) to provide furloughs to workers who enter the military while employed and re-employ them when their service ends. USERRA applies to all regular employees, regardless of full or part-time status, length of employment or service, or position. In addition, USERRA applies to leave taken for voluntary or involuntary active service, training, and funeral honor duty.

USERRA provides the following benefits related to military leave: (1) protection against discrimination based on military status or military obligations; (2) the right to re-employment at the end of military service; (3) termination protection for a period of time after return of service; and (4) certain rights related to pension and other benefit plans.

When they return from leave, members must be treated as if they had never left their job. After service of 90 days or less, service members have the right to return to the same position or to the position they would have reached, if not for taking a leave of absence. In addition, the returning employee is entitled to all salary increases, seniority increases and other benefits that would have been earned without the leave. For employees returning from leave more than 90 daysemployers may consider other positions that closely approximate the job an employee would have held or achieved in terms of seniority, status, and compensation.

Apart from certain exceptions listed below, the right to re-employment for a soldier is subject to several eligibility conditions, such as:

(1) The employee must have left employment for the purpose of performing service in the uniformed services;

(2) The employee must give prior oral or written notice of the need for the leave to the employer. Notice is not required if precluded by military necessity or otherwise impossible or unreasonable, and employers are not permitted to require written notice;

(3) With few exceptions, the employee must not exceed five years of military leave with any employer. Annual training and monthly drills do not count towards the running total;

(4) The employee must have returned to work in a timely manner or submitted a request for re-employment in a timely manner; and

(5) The employee must be discharged from service under honorable conditions.

The three exceptions to an employer’s re-employment obligation are:

(1) Re-employment would impose undue hardship on the employer.

(2) The employment was for a brief non-recurring period with no reasonable expectation that such employment would continue indefinitely or for any significant period.

(3) The circumstances of the employer have changed and would make such re-employment impossible or unreasonable.

FMLA

Generally, FMLA leave provides eligible employees of covered employers with up to 12 weeks of unpaid leave per year to care for their own medical condition or that of a family member. In addition, the FMLA provides the following entitlements to military family leave:

(1) An eligible employee who is the spouse, child, parent, or next of kin of a current service member with a serious injury or illness sustained in the line of duty while on active duty may take up to to 26 work weeks of FMLA leave for a single 12 month period to care for the service member (Military Caregiver Leave).

(2) An eligible employee whose spouse, child, or parent is a member of the National Guard or Reserve may take up to 12 work weeks leave for qualifying requirements arising from the military’s active duty or his call to active duty in support of a contingency operation (qualifying emergency leave).

(3) An eligible employee may take a leave of absence to care for certain veterans suffering from a serious injury or illness sustained or aggravated in the performance of their duties on active duty and which manifested itself before or after the veteran has left active service.

(4) Military compassionate care leave is also authorized for current service members with serious injuries or illnesses that existed prior to service and were aggravated by service in the performance of their active duty duties.

Unlike USERRA, FMLA leave is only available to employees who have worked 1,250 hours in a 12-month period within 75 miles of a location with at least 50 employees.

In addition to federal laws regarding military leave, many states also have laws governing this type of leave. However, state laws vary widely. As a best practice, employers should keep up to date with all applicable federal and state laws and provide the greatest benefits if the laws differ. In addition, employers may also offer military members more generous benefits than those mandated by federal and state laws.

Overall, employers should review all applicable laws, to ensure that their policies are fully compliant.