Original publish date: February 13, 2020. Updated January 27, 2023
Managing military-related leave requests can prompt a lot of questions, as employers have two federal leave laws to consider: the Family Medical Leave Act (FMLA) and Uniformed Services Employment and Reemployment Rights Act (USERRA). We’ve seen a lot of confusion when employers try to decipher the nuances of these two laws and how they should be interpreted when an employee who is also a service member requests a leave of absence from work. The Supreme Court’s 2022 decision in Torres v. the Texas Department of Public Safety added a new urgency to the topic of how to appropriately manage USERRA leaves, as did the CREW Act, signed by the President in September 2022, which expanded applicability of USERRA protections. ReedGroup originally blogged on this topic in 2020, but this 2023 update has new resources to help you – keep reading to find them!
Let’s look at an employer’s obligations and the factors to consider when it comes to leaves related to a military deployment.
FMLA – Qualifying Military Exigencies
Employees who meet the eligibility requirements under the Family and Medical Leave Act (FMLA) are entitled to take up to 12 work weeks of unpaid, job-protected leave in a 12-month period for a qualifying military exigency. A qualifying exigency leave applies when the employee’s spouse, child, or parent who is a member of the Armed Forces (including the National Guard and Reserves) is on or is called to active duty related to a foreign deployment. For purposes of this type of FMLA leave, the age of the child does not matter so the employee may take leave when his or her adult child is called to covered active duty.
Covered Active Duty
Only certain types of military duty are covered under the FMLA’s qualifying exigency leave. The military member must be either on covered active duty, called to covered active duty status, or has been notified of an impending call or order to covered active duty.
For members of the Regular Armed Forces (U.S. Army, Navy, Air Force, Marine Corps, and Coast Guard), covered active duty means duty during deployment to a foreign country. The employee’s family member must be deployed with the Armed Forces to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including international waters. The active duty orders of a member of the Regular Armed Forces generally will specify if the member is deployed to a foreign country.
For members of the National Guard and Reserves, covered active duty means duty during deployment to a foreign country under a Federal call to active duty or order to active duty in a contingency operation. The active duty orders of a member of the National Guard or Reserves generally will state whether the military member is serving in support of a contingency operation by citation to the relevant section of the United States Code and/or by reference to the specific name of the contingency operation and will specify that the deployment is to a foreign country.
To meet the requirements for an FMLA qualifying exigency leave, the call to active duty must be a Federal call to active duty. State calls to active duty are not covered under the federal FMLA unless they are ordered by the President, however they may be covered under state military leave laws.
The FMLA permits an eligible employee to take FMLA leave when their spouse, child, or parent is on or called to covered active duty in order to address various needs and activities that fall into nine categories:
- Short Notice Deployment – if the military member receives notice that they must deploy within seven days or less, the employee may take qualifying exigency leave to take care of any issue that arises from that short-notice deployment for a period of seven days following the day the military member received the deployment notice.
- Childcare and Related Activities – employees may take qualifying exigency leave for a variety of reasons related to the care of a child of the military member, including providing childcare on a non-routine, urgent, immediate need basis (but not on a routine or everyday basis); enrolling a child in a day care facility, transferring a child to a new school, arranging for alternative childcare, and attending meetings with staff at a school or a daycare facility when such meetings are necessary due to circumstances arising from the covered active duty or call to covered active duty status of the military member.
- Parental Care – recognizing that many military members may be taking care of their parents, qualifying exigency leave may be taken to address certain activities related to care of the military member’s parent who is incapable of self-care, including admitting or transferring the parent to a care facility, attending meetings with facility staff or social workers, arranging for alternate care, and providing care on a non-routine, urgent, immediate care basis (but not on a routine or everyday basis).
- Legal and Financial Arrangements – qualifying exigency leave may be taken to make or update legal and financial matters, such as making wills, executing financial and healthcare powers of attorney, obtaining military ID cards, transferring bank account signatory authority, etc.
- Attending Counseling – employees may take qualifying exigency leave to attend counseling for themselves, the military member, or the minor child of the military member (or adult child when incapable of self-care due to a disability) when the need for the counseling arises because of the deployment.
- Attending Military Events – employees are entitled to leave to attend certain military events such as informational briefings, official ceremonies, family support or assistance programs, and military service organizations when related to the military member’s deployment.
- Rest and Recuperation – when a military member is on short-term, temporary rest and recuperation during deployment, an employee may take up to 15 calendar days of leave to spend time with them.
- Post-Deployment Activities – qualifying exigency leave extends to attending arrival ceremonies, reintegration briefings, funerals, and other official programs as long as the event occurs within 90 days of the end of the military member’s covered active duty.
- The final category for qualifying exigency leaves is any other event that the employer and employee agree should qualify. Both parties must agree to the timing and duration of such leave as well.
You may require that an employee provide a certification to support his or her need for qualifying exigency leave. This may include proof that the employee’s spouse, parent, or child is deployed in covered active duty, such as a copy of the active duty orders. Or you may contact the Department of Defense directly to verify a military member’s covered active duty status. You may request documentation to show that the time off is related to one of the above nine categories of qualifying exigencies, such as asking for a copy of the military member’s rest and recuperation orders, or requiring documentation from a financial or legal consultant to show that the employee was attending to such needs. The U.S. Department of Labor (DOL) provides a form that may be used to obtain qualifying exigency certification.
Other FMLA Requirements
Employers may not deny FMLA qualifying exigency leave because it may cause an undue hardship or place other burdens on the business. If the employee is eligible and the family member meets the covered active duty requirements, the employee is entitled to take FMLA leave. Generally, other provisions of the FMLA, such as maintaining health care insurance, employer notice obligations, non-interference and non-retaliation provisions, etc., also apply to qualifying exigency leave. If in doubt, check out the DOL’s fact sheets and other resources on its FMLA website
It’s a lot, right? We know. That’s why we’re offering a free webinar on FMLA, specifically designed to address the concerns of large employers.
USERRA – When does it apply?
Another statutory protection for service members is provided by the Uniformed Services Employment and Reemployment Rights Act (USERRA). Enacted in 1994, USERRA provides reemployment rights to individuals who take leave from their civilian jobs to serve in the military. USERRA also prohibits employment discrimination and retaliation against past and current members of the uniformed services. Therefore, USERRA only comes into play when your employee is the one being deployed or called into other military service. It does not offer any leave for family members of the military member.
All U.S. employers are covered under USERRA, including both private and governmental employers, regardless of size.
An employee is entitled to take job-protected military leave pursuant to USERRA from the first day of employment. There is no minimum length of employment or hours of service requirement. Consequently, full-time, part-time and even temporary and seasonal employees generally are covered by USERRA, except to the extent that the period of employment was intended to be extremely brief with no reasonable expectation that the employment would have continued indefinitely or for a significant period.
Covered Military Service
USERRA applies to employees who are in the active and Reserve components of the Armed Forces (i.e., Army; Navy; Air Force; Marines; Coast Guard; National Guard, Commissioned Corps of the Public Health Service; the commissioned officer corps of the National Oceanic and Atmospheric Administration; system members of the National Urban Search and Rescue Response System during a period of appointment into federal service under Section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act; and any other category designated by the President in time of war or emergency). Covered service includes voluntary and involuntary service for:
- Active duty and active duty for training
- Inactive duty training
- Full-time National Guard duty
- Fitness-for-duty exams
- Funeral honors duty
- Duty performed by intermittent employees of the National Disaster Medical System (NDMS)
- State active duty for 14 days or more
- State active duty declared by the President under the National Emergencies Act
- State active duty in response to a major disaster declared by the President under Section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act
- Duty performed by FEMA Reservists when they are deployed to disasters and emergencies, or training for such, on behalf of FEMA
Please note that this definition of covered military service differs from the definition of covered active service that applies to qualifying exigencies under the FMLA. USERRA leave does not require deployment to a foreign country or some of the other restrictions that apply to the FMLA exigency leaves.
An employee is required to give his or her employer advance notice of upcoming military service, but USERRA does not define how much advance notice must be provided. This notice may be verbal or written and is not required if not possible or reasonable due to military necessity.
Importantly, an employer may not require an employee to provide any documentation of the upcoming military service. That means you may not demand that the employee provide their enlistment papers or active duty orders before taking military leave.
Duration of Military Leave
Under USERRA, an employee may serve in the military for a total of five years, which need not be continuous, and still retain reemployment rights with his or her employer. Do note there are nine exceptions to the five-year limit rule. For example, some military service, such as annual training, involuntary active duty extensions, and recalls due to a war or national emergency are not counted in the five-year cumulative total. In addition, other exceptions may apply, such as when an employee was hospitalized or recovering due to a military service-related illness or injury which may extend the limit for an additional two years. The full list of exceptions can be found at 38 U.S.C. § 4312(c)
Generally, employers may not refuse to allow an employee to take time off to serve in the military when covered by USERRA. The employee does not need to get employer permission before leaving for military service; they simply must provide notice.
When an employee returns from military service, the employer must return the employee to the job they would have attained had they not been absent for military service. This “escalator clause” means that if the employee would have been reasonably certain to have gotten a new job assignment or promotion based on his or her seniority or experience, they must be given the ability to have that new position upon returning from military leave. Depending on the length of military service, the returning employee must follow specific reemployment procedures, including deadlines for applying for reemployment. For employees who completed 31 or more days of military service, the employer may require the employee to provide documentation showing that they were discharged under honorable or general conditions, military service did not exceed the cumulative five-year limit, and the application for reemployment was timely.
Employers also must provide the returning employee with his or her seniority and seniority-related benefits, same (or escalated) rate of pay, immediate reinstatement of health insurance, and retraining. For vesting purposes, the employee must be treated as not having a break in employment.
Protection from Discharge
For a period of time, an employee who complies with the return-to-work provisions to become reemployed following military service may not be discharged from employment without cause. If the employee’s military service was 181 days or more, the employee may not be fired without cause for one year after the date of reemployment. If the period of military service was for 31-180 days, then the period of “for cause” discharge is 180 days. Employees who served 30 or fewer days are not protected from discharge without cause. “Cause” is based on conduct or the application of legitimate non-discriminatory reasons.
Undue Hardship and Affirmative Defenses
Under USERRA, employees generally have wide latitude to take leave to serve in the military. However, employers may refuse to reemploy an employee returning from military service under certain circumstances. If making efforts to qualify returning military members to their job duties would be of such significant expense or difficulty as to cause an “undue hardship,” the employer may be excused of the reemployment. Reemployment may also be excused if changed circumstances make reemployment impossible or unreasonable, such as if a reduction-in-force eliminated the job. Keep in mind that the employer has the burden of proving these excuses from reemployment, should it be challenged.
USERRA is complex. We’ve created a simple list of 5 USERRA best practices that employers should keep in mind.
Download USERRA Best Practices Infographic
Other Military-Related Leaves
Most states have enacted laws that protect employees who serve in the military in state duty. Many of these laws offer job-protected time off for an employee to engage in military activities, may specify conditions under which reemployment is available, and may protect returning service members from discharge without cause for a period of time.
A large number of states have also passed military family leave laws which are similar to the FMLA’s qualifying exigency leave, allowing employees to take time off to address certain issues related to a family member’s service in the military.
Each state may apply these military-related leave laws to different sizes of employers and may include various eligibility requirements, length or type of military service covered, reemployment obligations, and discrimination/retaliation protections. Be sure to investigate your state’s laws before making any determinations about leaves for an employee in the military or whose family member is serving in the military.
As the fine individuals of our military serve our country, employers can do their part by knowing and complying with the military-related leaves that may apply to their employees. ReedGroup can help by administering FMLA, USERRA, and certain state military family leaves. If you would like more information, please feel free to contact us here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.