In honor of Veteran’s Day, we wanted to offer a refresher on two of the employment laws that impact your employees who are also serving in the military, USERRA and FMLA. Often these laws don’t even cross the minds of business owners until they are in a situation where they have an employee in the military, but it is important to understand your responsibilities as an employer.

USERRA (The Uniformed Services Employment and Reemployment Rights Act)

USERRA was enacted in 1994 to expand and strengthen the employment and reemployment rights of uniformed service member including those in the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered “service in the uniformed services.”

Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.

USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.

All employers are required to post a notice, informing employees of their rights.

The rights protected include:

Discrimination: USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve. An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation. In addition, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.

Reemployment: The pre-service employer must reemploy service members returning from a period of service in the uniformed services if those service members meet five criteria:

  1. The person must have been absent from a civilian job on account of service in the uniformed services;
  2. The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
  3. The cumulative period of military service with that employer must not have exceeded five years;
  4. The person must not have been released from service under dishonorable or other punitive conditions; and
  5. The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.

Employers are required to provide to persons entitled to the rights and benefits under USERRA a notice of the rights, benefits, and obligations of such persons and such employers under USERRA.

Health Insurance: Employees who leave their job to perform military service, have the right to elect to continue existing employer-based health plan coverage for themselves and their dependents for up to 24 months while in the military.

They also have right to be reinstated on the employer’s health plan when they are reemployed, generally without any waiting periods or exclusions (e.g., pre-existing condition exclusions) except for service-connected illnesses or injuries, regardless of whether they continued their health coverage while away.

USERRA laws can be complex, particularly for small businesses that may not have the resources of larger organizations.

Family Medical Leave Act (FMLA)- Special Provisions for Servicemembers and Their Families

The military family leave provisions of the FMLA entitle eligible employees of covered employers to take FMLA leave for the following two reasons: Qualifying Exigency Leave and Military Caregiver Leave.

Qualifying Exigency Leave: An eligible employee may take qualifying exigency leave when the employee’s spouse, son, daughter or parent who is a member of the Armed Forces (including the National Guard and Reserves) is on covered active duty or has been notified of an impending call or order to covered active duty. Qualifying exigency leave was created to help eligible employees manage their affairs when family members are called to covered active duty or are serving in covered active duty with the Armed Forces. A covered employer must grant an eligible employee up to 12 work weeks of unpaid, job-protected leave during any 12-month period for qualifying exigencies that arise when the employee’s spouse, son, daughter or parent is on covered active duty or has been notified of an impending call or order to covered active duty.

Military Caregiver Leave: This allows an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member with a serious injury or illness to take up to a total of 26 workweeks of unpaid, job-protected leave during a single 12-month period to provide care for the service member.

Both qualifying exigency leave and military caregiver leave may be taken on an intermittent basis or on a reduced leave schedule basis. In addition, an employer may require that an employee’s request for either type of military family leave be supported by a certification completed by an authorized health care provider.

For more information about FMLA, check out the Understanding FMLA Toolkit.

Contact us at humanresources@helpside.com or (801) 443-1090 if you have any questions about USERRA for FMLA.