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Family and Medical Leave Rights for Families of Veterans, Re-Employment Rights for Military Service Members

Military discrimination and arbitrationFederal law provides for family and medical leave of spouses and family members of those serving in the military and makes it easier for service members to return to their jobs. They have rights to reemployment after the completion of military training or service. Disabled veterans coming back to the workforce are entitled to accommodations by their employers.These legal rights started in 1940 with the passage of the Veterans’ Reemployment Rights Act (VRR). In 1994 it was clarified and updated when the Uniformed Services Employment and Reemployment Rights Act (USERRA) was passed. The law is under the jurisdiction of the federal Department of Labor (DOL), through the Veterans’ Employment and Training Service (VETS).The Family and Medical Leave Act (FMLA) and the National Defense Authorization Act for FY2008 and FY2010 (NDAA)The FMLA is a federal law requiring unpaid family and medical leaves to qualified employees working for public employers and private employers with fifty or more employees. It permits eligible employees to take up to twelve weeks per year for,

  • The birth or adoption of a child,
  • The “serious health condition” of an employee, or
  • The “serious health condition” of an immediate family member of the employee.

To qualify, an employee must work for at least one year and for over 1250 hours during the last year.The NDAA, the first ever expansion of the FMLA, was signed into law in 2008 and updated in 2010. It created two new types of FMLA leave intended to help military families qualify for exigency leave and military caregiver leave.Eligible employees can take up to 12 weeks of job-protected FMLA qualifying leave because of any qualifying exigency due to a spouse, son, daughter, or parent of the employee is on active duty in the Armed Forces in support of a contingency operation. The “active duty” language refers to a federal call to active duty for members of the National Guard or Reserves.

Qualifying Exigency Leave

A “qualifying exigency” is at least one of eight categories of events:

  • Short notice deployment of up to seven days “to address any issue” arising from the notification of an impending call to active duty.
  • Military events and related activities such as official, sponsored, or promoted ceremonies, programs, events or information briefings related to active duty or a call to active duty.
  • Childcare and school activities.
  • Financial and legal arrangements.
  • Counseling needed as a result of active duty or the call to active duty that is provided by someone other than a health care provider.
  • Rest and recuperation to spend up to five days per period of short-term, temporary, R&R leave that a covered service member has during deployment.
  • Post-deployment activities to attend reintegration and other official events for up to ninety days after active duty terminates or to cope with the death of a covered service member.
  • Any additional activities related to service for which the employer and employee agree.

Military Caregiver Leave

Under the NDAA, an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member to a total of 26 work weeks of leave during a single twelve month period to care for the service member.

  • A “covered service member” is one “who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness,” if the veteran was a member of the Armed Forces, “at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.”
  • For a veteran, a serious injury or illness is “a qualifying injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.”

Both the military caregiver and qualifying exigency leave may be taken intermittently or on a reduced schedule. An employee that is eligible to take more than one type of FMLA leave is limited to 26 weeks of FMLA time off for any reason in a 12-month period.If an employee feels a violation of the FMLA has occurred, a complaint with the DOL Wage and Hour Division can be filed or a lawsuit can be filed. Potential penalties for an employer found to have violated the law include legal and equitable remedies, interest, attorneys’ fees and costs.

USERRA Provisions Help Returning Veterans Get Back to Work

USERRA protects civilian job rights and benefits for veterans and members of reserve units. It improves protection of rights and benefits by clarifying the law, improving enforcement and adding Federal Government employees to those eligible to receive assistance.

  • The law states returning service members are to be assigned to the job that they would have attained if they had not been absent for military service (the “escalator” principle), with the same seniority, status and pay as well as other rights and benefits determined by seniority.
  • USERRA mandates employers make reasonable efforts (including training or retraining) be made to allow returning service members to refresh or upgrade their skills to help them qualify for reemployment.
  • Alternative reemployment must be offered if the service member cannot qualify for the “escalator” position.
  • The law provides that while an employee is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.
  • USERRA establishes that reemployment rights don’t depend on the timing, frequency, duration or nature of an individual’s service as long as the basic eligibility criteria are met.
  • The law includes protections against retaliation for those using the protections of the law, or who help with a related investigation or lawsuit.

To be eligible for reemployment rights under USERRA the individual must meet five conditions, or “eligibility criteria.” He or she must,

  • Hold or have applied for a civilian job.

If an employer shows the job at issue was to be held for a brief, nonrecurrent period with no reasonable expectation of continuing for a significant period, the person does not qualify for USERRA protection.

  • Have given written or verbal notice to the civilian employer prior to leaving the job for military training or service except when precluded by military necessity.
  • Not exceed the five year cumulative limit on periods of service.
  • Have been released from service under conditions other than dishonorable
  • Report back to the civilian job in a timely manner or submit an application for reemployment.

USERRA sets the total time an individual may be away from work for military duty and retain reemployment rights to five years, with some exceptions.If a returning service member is disabled,

  • USERRA requires the employer to make “reasonable efforts” to accommodate persons with a disability incurred or aggravated during military service. The disability need not be permanent.
  • If the person has a disability that cannot be accommodated by reasonable employer efforts, the employer is to provide some other position he or she is qualified to perform which is the “nearest approximation” of the position to which the person is otherwise entitled, in terms of status and pay, with full seniority.
  • Service members recovering from service related injuries could have up to two years from the date of completion of service to return to their jobs or apply for reemployment.

How Veterans’ Legal Rights Are Enforced

The Department of Labor, through the Veterans’ Employment and Training Service (VETS) provides assistance to those making claims under USERRA, including Federal and Postal Service employees. The claim may ultimately end up before the Merit Systems Protection Board (MSPB) or in federal court. Unlike most employment related statutes, USERRA gives the employer, not the employee, the burden of proof. If violations under USERRA are shown to be willful, the court may award liquidated damages. Those who pursue their own claims in court or before the MSPB may be awarded reasonable attorney and expert witness fees if they prevail. If you’re a veteran with questions about USERRA or feel you’ve been discrimination against by your employer because of your legal service, contact our office so we can discuss your situation and your options.