HR Support on Military Leave of Absence

Editor's Note: Properly handle employee requests for military leave.

Melissa S. BurdorfOverview: The Family and Medical Leave Act (FMLA) provides eligible employees with covered family members serving in the military to take two types of leave - military caregiver leave and military or qualifying exigency leave. Military caregiver leave allows eligible employees the right to take up to 26 weeks of unpaid leave during a single 12-month period to care for a covered servicemember with a serious injury or illness incurred or aggravated in the line of duty. Military exigency leave allows an eligible employee whose spouse, son, daughter or parent is called up for covered active duty, or is notified of an impending call or order to covered active duty, to take 12 weeks of FMLA leave for certain exigencies related to the call-up of their family member. Examples of exigencies include leave to make practical arrangements for military events and related activities, childcare and for rest and recuperation.

In addition to the FMLA, several states require employers to provide employees with leave if the employee has a spouse or other covered family member serving in the military. These state laws may cover different family relationships (such as domestic partners), have more flexible eligibility requirements, have greater leave rights (such as paid leave) and/or have different ways an employee may qualify for leave. Employers should ensure that both state and federal laws are identified and understood. Certifications and other employer-required forms may need to be modified based on the federal and state requirements.

Employers must also be mindful that the FMLA's military exigency and caregiver leave are in addition to the rights provided to servicemembers under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). Moreover, there are instances where USERRA and the FMLA overlap. For example, when determining FMLA eligibility, employees who are returning from uniformed services must be credited with hours they would have worked had they not been on military leave. Many states also offer employment protection for individuals who serve in the military or who are called to serve while employed. Employers must be diligent in considering all laws when handling military leave issues.

Trends: The Department of Labor (DOL) has issued a Notice of Proposed Rulemaking regarding the military leave provisions of the FMLA. Highlights of the proposed rule include, for example: creating a three-part definition for the serious injury or illness of a veteran; expanding the military qualifying exigency leave provisions to include employees whose family members serve in the Regular Armed Forces; and expanding military caregiver leave to include care for covered veterans with a serious injury or illness.

Author: Melissa S. Burdorf, JD, Legal Editor

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