Where military leave and the FMLA meet
Posted December 6, 2018
Q: What is the Uniformed Services Employment and Reemployment Rights Act (USERRA)?
A: The USERRA is a federal law that provides reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service. It also prohibits employer discrimination against any person on the basis of that person’s past USERRA-covered service, current military obligations, or intent to join one of the uniformed services. The FMLA does not provide for military leave for employees; rather, it provides for leave for family members of military service members for certain reasons.
Q: What effect does the USERRA have on FMLA-eligibility requirements?
A: If a servicemember had been continuously employed, his or her FMLA eligibility will depend upon whether the servicemember would have met the employee eligibility requirements outlined above had he or she not performed USERRA-covered service. Basically, any time the employee spent performing military duty while with your company would count toward FMLA eligibility.
Q: How should the 12-month FMLA requirement be calculated for returning servicemembers?
A: The USERRA requires that a person reemployed under its provisions be given credit for any months of service he or she would have been employed but for the period of military leave in determining eligibility for FMLA leave. A person reemployed following USERRA-covered service should be given credit for the period of absence from work due to or necessitated by military service towards the months-of-employment eligibility requirement. Each month served performing USERRA-covered service counts as a month actively employed by your company. For example, Joe Employee has worked for you for nine months and was ordered to active military service for eight months after which he was reemployed. Upon reemployment, Joe must be considered to have been employed by you for more than the required 12 months (nine months actually employed plus eight months of USERRA-covered service) for purposes of FMLA eligibility. The 12 months of employment need not be consecutive to meet this FMLA requirement.
Q: How should the 1,250 hours-of-service requirement be calculated for returning servicemembers?
A: An employee returning from USERRA-covered service must be credited with the hours of service that would have been performed but for the taking of military leave in determining FMLA eligibility. Accordingly, a person reemployed following USERRA-covered service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1,250-hour requirement. In order to determine the hours that would have been worked during the period of absence from work due to or necessitated by USERRA-covered service, the employee’s pre-service work schedule can generally be used for calculations. For example, Joe Employee, who works 40 hours per week, returns to employment following 20 weeks of USERRA-covered service and requests leave under the FMLA. To determine Joe’s eligibility, the hours he would have worked during the period of USERRA-covered service (20 x 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1,250-hour requirement is met.
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