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How to Manage Military Leave

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Session Objectives

Identify requirements of federal military leave law

Understand rights and responsibilities of employees and the organization

Inform employees about leave procedures

Handle return-to-work issues appropriately

Help ensure compliance with law

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Family Military LeaveFMLA

• Leave for qualifying exigency

• Leave for serious illness or injury

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Eligibility Requirements:Family Military Leave• Qualifying exigency

• Contingency operation

• Qualifying injury or illness

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• Qualifying exigency: reasonable and practicable

• Servicemember caregiver leave: same rules as FMLA

Notice and Certification: Family Military Leave

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Family Military Leave: Benefits• Same as FMLA

• Substitution of paid leave

• No requirement to provide paid leave

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Legal Protection For Military Leave• USERRA

• Discrimination prohibited

• Retaliation prohibited

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Eligibility Requirements For Military Leave• Army, Navy, Air

Force, Marines, Coast Guard

• Reserve units, National Guard

• Corps of Public Health Service

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Exceptions to Eligibility Rules

Other than honorable discharge

AWOL

Imprisonment by order of civilian court

Situations involving court martial

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Types of Service Covered• Active duty

• Active and inactive duty for training

• Full-time National Guard duty

• Fitness-for-duty exams

• Funeral honors duty

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Notice of Military Service Required by Law• Advance written

or verbal notice by employee

• Notice given by military

• No notice required if impossible or unreasonable

• No notice required for “military necessity”

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Paid or Unpaid Leave?• USERRA

requirements

• Differential option

• Time limitation on differential, if offered

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• Time to complete initial period of obligated service

• Inability to obtain release

• Required training for National Guard and Reservists

• Domestic emergencies related to national security

Length of Service And Exceptions

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Military Leaves: Multiple Choice Quiz

How much notice must employees provide for USERRA-covered military leave?

USERRA provides guidelines concerning:

The law doesn’t protect jobs of workers who:

USERRA prohibits: a. Discrimination

a. 30 days

a. Reemployment

b. Reasonable notice

b. Replacements

a. Volunteer

b. Are dishonorably discharged

b. Seniority rights

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Military LeavesDo you understand:

• Family military leave?

• USERRA protections and types of service covered?

• Eligibility requirements and exceptions?

• Notice requirements?

• Compensation for military leave?

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Reemployment: Time Limits for Return to Work• Less than 31 days

of leave—beginning of first full work period after service

• 31 to 180 days of leave—up to 14 days after service

• 181 days or more—up to 90 days after service

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Reemployment: Limits for Return to Work (cont.)

• Hospitalized employees—2 years

• Fitness-for-duty exam—first full work period after exam completed

• Missed deadlines—treated as unexcused absence

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Required proofFailure to provide proper documentation

Reemployment: Documentation

• Reemployment application is timely

• 5-year limit not exceeded

• Separation was not dishonorable

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Reemployment: Positions• Service for less than

91 days—job would have held if continuous employment

• Service for 91 days or more—job would have held or equivalent

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Reemployment: Positions (cont.)

• Placement in similar job if employee can’t qualify for old job

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Reemployment: Disabilities• Reasonable

accommodation

• Equivalent position

• Alternate job

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• Change in employer’s circumstances

• Service disability and undue hardship

• Brief, nonrecurrent preservice employment

• No reasonable notice of the desire to return

• Burden of proof on employer

Reemployment: Exceptions

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Rights and Benefits• Furlough or leave of absence

• Seniority rights

• Rights and benefits not based on seniority

• Job protection

• Substitution of vacation leave

• FMLA

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Healthcare Benefits• Continuation of

coverage for up to 24 months

• Premium payment

• Exclusions and waiting periods

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Pension Benefits• Vesting and accrual

• Employer contributions

• Employee contributions

• Calculation of compensation

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USERRA Investigations And Enforcement• Complaints

• Investigations

• Enforcement

• Private court actions

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Court-Ordered Remedies Under USERRA• Court-ordered

compliance

• Compensation for lost wages or benefits

• Liquidated damages

• Reasonable fees and expenses

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Return to Work: Q&AQ.

A.

A.

A.Q.

Q.

How long can workers on leave continue health coverage?

24 months

Do pension benefits stop vesting and accruing during military leave?

No, they vest and accrue as normal

What if an employer violates USERRA?

It will be ordered to comply with the law and may have to pay the employee compensation, damages, and court costs

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Return to WorkDo you understand:

• Reemployment time limits and documentation?

• Rules for reinstatement?

• Reasonable accommodation?

• Exceptions to reemployment rules?

• Protection of employee rights and benefits?

• Investigations, enforcement, and court actions?

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Discriminate

Deny opportunities

Retaliate

Deny reemployment

Take away rights or benefits

Force use of vacation time

DON’T

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DO

Try to avoid schedule conflicts

Work with employees to facilitate leaves

Find out start and end dates of leave

Keep in touch with employees on leave

Help returning employees readjust to workplace

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Key Points to Remember

USERRA tries to make military leave less disruptive for employees and employers

We can’t deny eligible workers military leave

or refuse to reemploy them following leave

Employees’ jobs and benefits are protected

We must accommodate service-related disabilities

Violations of the law can result in government investigations and lawsuits