Certain activities related to military service or caretaking qualify employees for various types of job-protected military leave. Here’s how it works.
Employees who serve in any U.S. military branch are eligible for certain types of military leave for active duty and inactive duty responsibilities. Military leave rights extend to retirees, reservists, and family members, as well. Wondering how many people serve in the U.S. armed forces and to how many employees a related leave period could apply?
According to the Council on Foreign Relations,¹ today’s armed forces comprise some 1.3 million active-duty personnel. More than 400,000 people serve in the National Guard, according to the USO.² Approximately 200,000 soldiers and civilians serve in the U.S. Army Reserve, according to the USAR official website.³ And that’s just a sample breakdown.
Here we’ll cover types of military leave available to individuals who are, were, or have family members in the services.
What is military leave?
Certain activities that employees must perform for the armed forces qualify them for leaves of absence without risking job loss. Most commonly, military leave is granted when the employee is called to active duty or inactive duty training. Military leave is protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994.
As an employer, it’s important to create a military leave policy that conforms to the USERRA. It should address what happens when an employee requires a leave of absence to fulfill military training, active or inactive duty service, and other obligations.
Who is eligible for military leave?
Depending on the type and circumstances, military leave is accessible to employees who are armed forces active, inactive, reserve, or veterans, and certain family members. Almost every one who is employed by a private or government employer is covered by the USERRA. The USERRA gives military services members the right to be reemployed in their civilian jobs upon return from military service or training under the following conditions:
- They must have provided advance written or verbal notice to their employer (when possible).
- Must accumulate no more than 5 years’ leave with each employer.
- They have not been released from military service under dishonorable or other disqualifying conditions.
- Must report back to the job or reapply for employment in a timely manner.
Types and benefits of military leave
USERRA is designed to protect employees in the armed forces from discrimination based on their military obligations and status. These employees have the right to:
- Be reemployed after their military service has concluded in the job they would have had if they hadn’t taken leave or, in some situations, a comparable job.
- Not be terminated without cause for a specific period of time after they return from their military duties.
- Certain health and pension plan coverage.
An employee may request military leave for certain military orders and activities. Below, we’ll cover some of the reasons they might do so.
Military leave activities
Qualifying military service in the uniformed services may be involuntary or voluntary and includes:
- Active duty.
- Emergency duty and contingency operations. Depending on the type and situation, some might be ordered by the president, Secretary of Defense, or a state governor.
- Training (active duty, initial active duty, or inactive duty training). These may be regularly scheduled training days and/or additional training periods military members are required to attend.
- Full-time National Guard duty.
- Service or training with the National Disaster Medical System during a public health emergency.
- Funeral honors duty for members of the National Guard or reserve.
FMLA military family leave
In addition to the protections offered by USERRA, family members of military personnel may also be granted job-protected leave under the Family and Medical Leave Act (FMLA) military leave guidelines. Those were added to the FMLA in 2008 and expanded in 2010. These provisions apply to employees who have family members serving in the armed forces, National Guard, or reserves.
Employees of private businesses that employ 50 or more full-time employees (or full-time equivalent staff) within 75 miles of the worksite qualify for military family leave. So do employees of all U.S. government agencies and elementary and secondary schools. To be eligible for military family leave, an employee must have worked for a covered employer for at least 12 months, including at least 1,250 hours worked during the last 12 months before taking the leave.
FMLA qualifying exigency
This pertains to a spouse, parent, or child of an employee being deployed to a foreign country or receiving notice of deployment. An employee who is eligible for military family leave may be entitled to qualifying exigency leave.
This gives employees the right to take up to 12 workweeks of FMLA leave for qualifying exigencies, for example:
- Arranging for alternative childcare.
- Attending military ceremonies and briefings.
- Making financial or legal arrangements to address the military member’s absence.
FMLA qualifying exigency – deployment
When employees face short-notice deployment of family members (7 days or less), employees are eligible for up to 7 calendar days’ leave (beginning the date of the notice of deployment) to:
- Make financial and legal arrangements that might arise from the deployment.
- Attend counseling sessions provided by someone other than a healthcare provider for the military member or family member for issues related to the military member’s active duty.
- Attend military ceremonies, programs, family support programs, or briefings sponsored or promoted by the military related to the member’s covered active duty.
FMLA qualifying exigency – rest and recuperation leave
Employees are eligible for up to 15 calendar days of job-protected leave to spend with a covered service member on rest and recuperation leave during active duty.
FMLA qualifying exigency – post-deployment
Employees are eligible for FMLA leave to attend post-deployment activities for up to 90 days after the termination of their family member’s active duty. These include:
- Arrival ceremonies, reintegration briefings and events, or other official ceremonies or programs sponsored by the military.
- To address issues arising from the death of a military member.
FMLA military caregiver leave
Eligible employees are entitled to up to 26 weeks of job-protected unpaid leave within a single 12-month period to provide care for a covered service member or veteran. Family members who qualify include a spouse, parent, child, or next of kin. Children include biological, adoptive, step, foster, or legal wards for whom the servicemember stood “in loco parentis.” Parents include biological, adoptive, step, foster, or in loco parentis, but do not include parents “in law.”
It’s important to note that this provision covers veterans if:
- They incurred a serious injury or illness in the line of duty, or illness or injury was aggravated by service.
- The injury or illness meets the FMLA’s definition of “serious.”
- The injury or illness may have first manifested before or after the servicemember became a veteran.
How to apply for military leave
Employees should request military leave as soon as possible once they’re aware of the need. For FMLA leave, notice should be given at least 30 days in advance when the need is foreseeable. If it’s not foreseeable, notice is required as soon as otherwise possible. For USERRA, advance notice is required unless it is prevented by military necessity or is otherwise unreasonable or impossible. This helps ensure the employer has time to cover the employee’s regularly scheduled shifts.
When family members request military caregiver leave under the FMLA, their employer has the right to request certain information, including:
- Healthcare provider contact information.
- How the injury was incurred or aggravated.
- The anticipated duration of the injury.
- A statement of facts supporting the need for caregiver leave.
- A schedule or estimate of treatments and appointments.
- The employee’s name and the name of the service member as well as the relationship.
- Information on the service member, including branch, rank and unit assignment, or separation from service date.
Outside the context of FMLA and USERRA, some terms and specifics may vary from one employer or state to another. These can include what constitutes variables like “annual leave” and whether an employee is entitled to any paid time off. The number of states with paid family leave programs is increasing, and some policies further address military leave.
Moreover, various titles within the United States Code break down even finer details.
To clarify all guidelines and regulations, it’s wise to provide information about FMLA and military leave in your employee handbook. Also post notice of the guidelines in a conspicuous area for employee viewing.
Upon request for leave, let the employee know if the leave qualifies and the amount for which they’re eligible. If it isn’t USERRA- or FMLA-protected, an employee may need to use another type of leave. That could be sick leave, personal leave, or unused leave of another sort.
Keep your workplace compliant with all the military leave rules and regulations by regularly reviewing the USERRA and FMLA. Have your company policies reviewed by your legal team and HR professionals and modified accordingly.
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