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

Latest items in Military Leave

  • Military Leave Handbook Statement: Montana

    Type:
    Employee Handbooks

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

  • FMLA: Alabama

    Type:
    Employment Law Manual

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

  • Military Leave Handbook Statement: North Carolina

    Type:
    Employee Handbooks

    North Carolina employers seeking to educate employees about the availability of leave for state service in the North Carolina National Guard and to demonstrate compliance with North Carolina's military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Vermont

    Type:
    Employee Handbooks

    Vermont employers seeking to educate employees about the availability of temporary military duty leave and reemployment rights for Vermont National Guard members and to demonstrate compliance with Vermont's military leave laws should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Colorado

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: Virginia

    Type:
    Employee Handbooks

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

  • Military Leave Handbook Statement: New Hampshire

    Type:
    Employee Handbooks

    New Hampshire employers seeking to educate employees about the availability of certain rights, protections and benefits, including a leave of absence, for eligible servicemembers and to demonstrate their compliance with New Hampshire's military leave law should consider including this model policy statement in their handbook.

  • Military Leave Handbook Statement: Nevada

    Type:
    Employee Handbooks

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

  • Military Leave - Federal Active Duty and Federal Government Service Handbook Statement: Wisconsin

    Type:
    Employee Handbooks

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

  • Military Leave - National Guard and State Defense Forces Handbook Statement: Wisconsin

    Type:
    Employee Handbooks

    Wisconsin employers seeking to educate employees about the availability of military leave for members of the National Guard and State Defense Forces and demonstrate to their compliance with Wisconsin's military leave law should consider including this model policy statement in their handbook.