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

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    Type:
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    Indiana employers employing 50 or more employees for each working day for at least 20 calendar weeks should consider including this model policy statement in their handbook.

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    Type:
    Employee Handbooks

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

  • FMLA: Montana

    Type:
    Employment Law Manual

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

  • Military Leave Handbook Statement: Iowa

    Type:
    Employee Handbooks

    Iowa employers with at least one regular (non-temporary) full-time or part-time employee that seek to educate employees about the availability of leave for military duty and to demonstrate their compliance with Iowa's military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Alabama

    Type:
    Employee Handbooks

    Alabama employers seeking to educate employees about the availability of military leave and to demonstrate compliance with Alabama military leave law should consider including this model policy statement in their handbook.

  • FMLA: Ohio

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

  • FMLA: South Carolina

    Type:
    Employment Law Manual

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

  • FMLA: Tennessee

    Type:
    Employment Law Manual

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

  • Military Leave Handbook Statement: Michigan

    Type:
    Employee Handbooks

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