Learn about the laws that provide leave protection for active duty service members, veterans, and their family members.
More and more companies realize the benefits of hiring military members and veterans. These disciplined workers have high levels of emotional intelligence; leadership, teamwork, and cooperation are skills they have been trained to hone. Several laws are in place that provide job and leave protection for those who serve our country.
Active-duty and reservists have special protections and leave allowances under federal and some state laws. Those who care for active-duty and veteran military service members also have the right to extended leave under federal law. In addition, active service members have job protection under federal regulations.
Active service military personnel have the right to job protection under the Uniformed Services Employment and Reemployment Rights Act of 1994. This federal law applies to all employers, without regard to size, along with all employees — no matter whether they’re full- or part-time or how long they’ve been on the job.
The USERRA covers all active-duty members of any uniformed branch of the military, including reservists and National Guard. It includes training, active service, funeral honors duty, and time off for examinations that determine fitness for duty or service. USERRA prohibits employment discrimination on the basis of previous military service, current military obligations, or any intent to serve. Like all discrimination laws, the law covers every aspect of employment.
- Must be called to active duty to receive job-protected leave from their civilian job
- Should provide advanced notice to the employer, whenever possible
- May accumulate no more than 5 years leave with each employer
- Was not released from military service under dishonorable or other punitive conditions
- Must report back to the job, or reapply for employment, in a timely manner, whenever possible
Members of the National Guard called for active duty are covered under the USERRA when called by a federal authority. Some states also have State Active Duty statutes that cover the military called in to assist with emergencies in the state.
Military FMLA Leave
In 2008 and 2010 the Family and Medical Leave Act was amended to provide employees with family members serving in the armed forces, National Guard, and Reserves with job-protected leave in the event of need related to their family members’ military service.
Businesses that employ 50 or more full-time or full-time equivalent staff within a 75 mile radius of the worksite must provide Military Family Leave. To be eligible for leave, a staff member must have logged in at least 1,250 hours worked during the last 12 months on the job. Once these eligibility requirements are met, leave requests and permissions are offered in 2 categories.
Employers must grant up to 12 weeks of unpaid, job-protected leave in the event of a qualifying exigency.
The first military provision of the FMLA covers qualifying exigencies. A qualifying exigency includes whenever an employee’s spouse, child, or parent is on covered active duty or has been notified of an impending call to active duty.
Covered active duty includes deployment to a foreign country or call to support a contingency operation. Contingency operations are military actions in defense of an enemy of the United States or an opposing military force. Employers must grant up to 12 weeks of unpaid, job-protected leave in the event of a qualifying exigency.
Employees have the right to leave under a qualifying exigency to:
- Arrange for alternative child care
- Arrange for a child of the deployed service member to attend military ceremonies and briefings, or
- Make financial or legal arrangements to address the military member’s absence
Employees do not have to be related to a child of an active-service military member, but must be a spouse, parent or child of the military member whose child needs assistance.
Additionally, when employees must 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 This can include creating and executing healthcare and financial powers of attorney, obtaining identification materials, arranging for military service benefits, and more
- Attend counseling sessions for the employee or military member, if necessarily required due to covered 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
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.
Employees are eligible for up to 90 days of post-deployment leave following covered active duty of a spouse, child, or parent to attend:
- Arrival ceremonies, reintegration briefings and events, or other official ceremonies or programs sponsored by the military.
- To issues arising from the death of a military member, including attending funeral services.
- Any other event the worker and employer agree is a qualifying exigency; the time and duration of the leave must also be agreed upon.
- To a military member’s parent who is incapable of self-care. This could include arranging for or providing care, transferring to a care facility, and/or attending meetings with care facilities or hospice staff.
- Employees do not need to be related to the military member’s parent, but must be the spouse, parent, or child of the military member whose parent needs assistance.
Military Caregiver Leave
The second type of FMLA leave for military personnel is Caregiver Leave. Eligible employees are eligible for up to 26 weeks of job-protected leave to provide care for a covered service member. This includes a spouse, parent, child or next of kin.
The second type of FMLA leave for military personnel is Caregiver Leave. Eligible employees are eligible for up to 26 weeks of job-protected leave to provide care for a covered service member.
Children include biological, adoptive, step, foster, ward or “in loco parentis” children. Parents include biological, adoptive, step, foster, or in loco parentis, but do not include in-laws.
- In loco parentis: a person who provides day-to-day care or financial support of a child without regard to biological or legal relationship.
Next of kin include the nearest blood relation other than spouse, parent, or child. The order of priority for next of kin, per the U.S. Military:
- Blood relative designated in writing by the service member for FMLA military caregiver leave
- Blood relatives granted legal custody of the service member
- First cousins
Active Service Caregiver Leave
Active and veteran status determines caregiver leave.
Military caregiver leave to attend to the needs of an active service member is required in the event of a serious injury or illness. This includes any injury or illness a member acquired during the tour of duty, or an existing illness or injury that active-duty service aggravated. Employees who provide care for an active-service member are eligible for up to 26 weeks of leave per year.
Veteran Caregiver Leave
Veterans receive caregiver leave only if they take leave within 5 years after discharge from military service in the event of:
- Serious injury or illness they incurred in the line of duty, or an illness or injury that their service aggravated
- Physical or mental condition that quailed the veteran for Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50% or greater
- Physical or mental condition that substantially limits the veteran’s ability to work
Military Caregiver Leave versus Employee Leave
Unlike other forms of FMLA leave, military caregivers are able to receive up to 26 weeks of leave. This leave is also renewable as early as 12 months after the first day of the initial leave, regardless of how the employer establishes other leave requirements. An employee may also be eligible for additional leave in a future 12 month period to attend to the needs of a service member who has been discharged and needs assistance as a veteran.
Additionally, employees who are eligible for FMLA for their own serious medical condition may take up to 12 weeks of personal FMLA leave. These employees can receive up to 14 additional weeks to attend to the needs of a covered service member, totaling up to 26 weeks per year.
FMLA leave is unpaid, however employees may use any earned PTO during their absence. Employers must also continue any healthcare coverage they provided to the worker on leave as a military caregiver. Employers may still collect any employee-contributions to the plans.
For businesses that employ service members, providing support when leave is necessary to active duty service members, veterans, and their family members demonstrates the value we place on those who defend us today, in the past and in the future.