HR Support on Military Leave of Absence

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

Melissa S. BurdorfOverview: The Family and Medical Leave Act (FMLA) allows 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 gives 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 unpaid leave for certain exigencies related to the call-up of their family member. Examples of exigencies include leave to attend military events and related activities, to make childcare arrangements, to receive counseling and to rest and recuperate.

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: As more and more states legalize same-sex marriage, employers in those locations should update their family military leave policies to include same-sex spouses.

Author: Melissa S. Burdorf, JD, Legal Editor

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    Type:
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    New Jersey employers seeking to educate employees about the availability of reinstatement following certain military service or duties and to demonstrate their compliance with New Jersey's military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Washington

    Type:
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    Washington employers seeking to educate employees about the availability of leave for military duty and to demonstrate compliance with Washington's military leave law should consider including this model policy statement in their handbook .

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    Type:
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    In-depth review of the spectrum of Wyoming employment law requirements HR must follow with respect to FMLA.

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    Type:
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    In-depth review of the spectrum of West Virginia employment law requirements HR must follow with respect to FMLA.

  • FMLA: Virginia

    Type:
    Employment Law Manual

    In-depth review of the spectrum of Virginia employment law requirements HR must follow with respect to FMLA.

  • FMLA: Vermont

    Type:
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    In-depth review of the spectrum of Vermont employment law requirements HR must follow with respect to FMLA.

  • FMLA: Utah

    Type:
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    In-depth review of the spectrum of Utah employment law requirements HR must follow in respect to FMLA.

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    In-depth review of the spectrum of South Carolina employment law requirements HR must follow with respect to FMLA.

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    Type:
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    In-depth review of the spectrum of Rhode Island employment law requirements HR must follow with respect to FMLA.

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    Type:
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    In-depth review of the spectrum of Pennsylvania employment law requirements HR must follow in respect to FMLA.