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© BLR®—Business & Legal Resources 1410
How to Manage Military Leave
© BLR®—Business & Legal Resources 1410
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
© BLR®—Business & Legal Resources 1410
Family Military LeaveFMLA
• Leave for qualifying exigency
• Leave for serious illness or injury
© BLR®—Business & Legal Resources 1410
Eligibility Requirements:Family Military Leave• Qualifying exigency
• Contingency operation
• Qualifying injury or illness
© BLR®—Business & Legal Resources 1410
• Qualifying exigency: reasonable and practicable
• Servicemember caregiver leave: same rules as FMLA
Notice and Certification: Family Military Leave
© BLR®—Business & Legal Resources 1410
Family Military Leave: Benefits• Same as FMLA
• Substitution of paid leave
• No requirement to provide paid leave
© BLR®—Business & Legal Resources 1410
Legal Protection For Military Leave• USERRA
• Discrimination prohibited
• Retaliation prohibited
© BLR®—Business & Legal Resources 1410
Eligibility Requirements For Military Leave• Army, Navy, Air
Force, Marines, Coast Guard
• Reserve units, National Guard
• Corps of Public Health Service
© BLR®—Business & Legal Resources 1410
Exceptions to Eligibility Rules
Other than honorable discharge
AWOL
Imprisonment by order of civilian court
Situations involving court martial
© BLR®—Business & Legal Resources 1410
Types of Service Covered• Active duty
• Active and inactive duty for training
• Full-time National Guard duty
• Fitness-for-duty exams
• Funeral honors duty
© BLR®—Business & Legal Resources 1410
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”
© BLR®—Business & Legal Resources 1410
Paid or Unpaid Leave?• USERRA
requirements
• Differential option
• Time limitation on differential, if offered
© BLR®—Business & Legal Resources 1410
• 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
© BLR®—Business & Legal Resources 1410
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
© BLR®—Business & Legal Resources 1410
Military LeavesDo you understand:
• Family military leave?
• USERRA protections and types of service covered?
• Eligibility requirements and exceptions?
• Notice requirements?
• Compensation for military leave?
© BLR®—Business & Legal Resources 1410
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
© BLR®—Business & Legal Resources 1410
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
© BLR®—Business & Legal Resources 1410
Required proofFailure to provide proper documentation
Reemployment: Documentation
• Reemployment application is timely
• 5-year limit not exceeded
• Separation was not dishonorable
© BLR®—Business & Legal Resources 1410
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
© BLR®—Business & Legal Resources 1410
Reemployment: Positions (cont.)
• Placement in similar job if employee can’t qualify for old job
© BLR®—Business & Legal Resources 1410
Reemployment: Disabilities• Reasonable
accommodation
• Equivalent position
• Alternate job
© BLR®—Business & Legal Resources 1410
• 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
© BLR®—Business & Legal Resources 1410
Rights and Benefits• Furlough or leave of absence
• Seniority rights
• Rights and benefits not based on seniority
• Job protection
• Substitution of vacation leave
• FMLA
© BLR®—Business & Legal Resources 1410
Healthcare Benefits• Continuation of
coverage for up to 24 months
• Premium payment
• Exclusions and waiting periods
© BLR®—Business & Legal Resources 1410
Pension Benefits• Vesting and accrual
• Employer contributions
• Employee contributions
• Calculation of compensation
© BLR®—Business & Legal Resources 1410
USERRA Investigations And Enforcement• Complaints
• Investigations
• Enforcement
• Private court actions
© BLR®—Business & Legal Resources 1410
Court-Ordered Remedies Under USERRA• Court-ordered
compliance
• Compensation for lost wages or benefits
• Liquidated damages
• Reasonable fees and expenses
© BLR®—Business & Legal Resources 1410
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
© BLR®—Business & Legal Resources 1410
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?
© BLR®—Business & Legal Resources 1410
Discriminate
Deny opportunities
Retaliate
Deny reemployment
Take away rights or benefits
Force use of vacation time
DON’T
© BLR®—Business & Legal Resources 1410
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
© BLR®—Business & Legal Resources 1410
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