Members of the armed forces are generally protected from discrimination in their employment by civilian employers under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). In addition to individual state laws that may protect service members, USERRA makes it illegal for an employer to deny a “benefit of employment” to a member of the armed forces based on such membership or the employee’s performance of service. Its primary purpose being to encourage people to join the military reserves, USERRA claims have increased in frequency during the past decade as reservists have been called to long stints of active duty due to U.S. military commitments in Afghanistan and Iraq.
Continuing from last week’s Employment Law Update, employees have expanded Family and Medical Leave Act (FMLA) rights in relation to the care of a family member who is a veteran and is undergoing medical treatment or therapy for injury/illness that occurred within the five years preceding treatment. The Fiscal Year 2010 National Defense Authorization Act, which became effective October 28, 2009, expanded the military leave provisions of the FMLA that first became law in January 2008. With respect to the so-called “caregiver leave,” the law now grants eligible employees up to 26 weeks of FMLA leave to care for a family member, (i.e., spouse, son/daughter, parent, or “next of kin”) who is a veteran undergoing medical treatment or therapy for injury/illness that occurred within the five years preceding treatment.
This 26 workweeks of caregiver leave applies to a “single 12-month period.” This period starts when the employee begins the leave, and ends 12 months later, regardless of the 12-month period the employer applies for purposes of other FMLA leaves. During this unique “single 12-month period,” the employee is limited to a combined total of 26 workweeks of leave for any FMLA-qualifying reason. In other words, the military caregiver leave is not additive to the usual 12 weeks of FMLA leave entitlement. But tracking this can get tricky because the military caregiver leave will usually be on a different 12-month tracking period.
The DOL’s Fact Sheet #28A provides a summary of both the FMLA’s “caregiver leave” as well as the so-called “exigency leave.”
For most HR professionals, the nuances of Uniformed Services Employment and Reemployment Rights Act (USERRA) and the details of the new FMLA military caregiver leave are unfamiliar. These simply are not ordinary employment law issues that arise frequently. But, an employer must comply fully or face the prospect of having to defend against the unseemly claims that it is not only non-compliant with an employment law, but unpatriotic as well.
Last week, President Obama announced the end of combat operations in Iraq. Although most of the 65,000 Americans serving there will either stay in Iraq into next year or be re-deployed, thousands will be returning to civilian life. Employers need to be mindful of the principal employment laws that protect the job rights of both the returning military personnel and their family members.
USERRA protects the rights of veterans to return to their civilian jobs. Employers must reemploy returning service members in the job that they would have attained had they not been absent for military service (the so-called “escalator” position), with the same seniority, status, and pay. USERRA also requires employers to make reasonable efforts to train or retrain returning service members to refresh or upgrade their skills to help them qualify for reemployment. If the individual cannot qualify for the “escalator” position, USERRA requires the employer to provide alternative reemployment positions. The Department of Labor has published “VETS USERRA Fact Sheet 3” and other information to help employers understand the reemployment rights of service members.