CEDR Two Minute Trainer: Military Leaves of Absence (LOA)

We all like to think of ourselves as patriots and supporters of our military servicemen and servicewomen. We may have a family member or friend in the armed services, we may already give military discounts, and we may also be genuinely grateful for those willing to answer the call of duty. But how would you feel if one of your employees was deployed for a year or more, and you were required to reinstate him or her upon return?

First, we need to understand our legal obligations as employers. Employees in any category of military training and service, whether voluntary or not, in peacetime or in war, are protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Though mostly understood as applying to the Guard and Reserve, it also applies to those in active duty within the armed forces and the National Disaster Medical System. The USERRA applies to ALL employers, regardless of size.

Essentially, the USERRA prohibits discrimination in hiring and employment on the basis of military service. The most common obligation is to provide leave for up to five years with reinstatement when certain criteria are met. In this trainer, we will address some common scenarios employers face, and what you need to know to deal with them successfully.

HIRING: “If I had known she could get deployed, I never would have hired her.”

• Don’t let yourself be the target of a USERRA enforcement action. Employers are strictly prohibited from any form of discrimination based on military status. This includes initial employment, reemployment, retention, promotion, or the availability of any benefits.
• Duties covered by the USERRA include both voluntary and involuntary duties. This means that you may not discriminate against an employee who volunteers themselves for a special duty or deployment, for example, funeral honors duty.

TRAINING: “I can require my employee to use PTO for time spent in military training, right?”

• You may not require your employee to use accrued vacation, PTO, or sick leave during military service, but you must allow it at the employee’s election, under your regular policies. You also may not count military service as a deduction from other available leaves, such as maternity leave.

EXTENDED LEAVE: “How long do I have to hold my employee’s job open?”

• You must offer a position of similar status, seniority, and pay upon your service member employee’s return. This could mean filling in their position with a temporary hire during the period of deployment. In limited situations, when it is not possible for you to return your employee to their exact position, you can have them reapply when they return, with the understanding that you will find them a similar position within your organization.
• Notice of Leave: Employers have the right to receive advance notice of service, unless military conditions make it impossible. However, do not confuse advance written notice with asking for permission. Service members are legally entitled to take leave and to be reemployed at the end of their term of service; they don’t need your permission.
• For employees who are paid on commission, “similar pay” has been defined by the courts as an equal opportunity to earn the same amount of pay. This might mean providing access to the same number of patients or the same work schedule that the employee had prior to deployment.
• Eligible employees must be provided with COBRA rights to continue health insurance coverage at their own expense for up to 24 months.
• 5-year limit: You are not required to hold your employee’s job for more than 5 years, except under limited circumstances, such as involuntary active duty during wartime or national emergency.

RETURN: “What is required for the employee to be reinstated?”

• Your returning employee must report back to work, or contact you to reapply, within a certain timeframe, depending on the length of their deployment or active service.
  • For deployments lasting less than 31 days, your employee has until the next regularly scheduled workday after safe travel and 8 hours rest.
  • For deployments of between 31-180 days, your employee must contact you or reapply within 14 days of their return.
  • For deployments lasting longer than 180 days, your employee must contact you or reapply within 90 days of their return from service.
• Returning employees must also have received an honorable discharge or separation for qualifying reasons, and present proof of service if the leave lasts more than 30 days.
• If the individual has a disability upon return, whether incurred or aggravated during service, the employer must make reasonable efforts to accommodate.
• Employees must receive the same benefits and pay as if they had been continuously employed.

FAMILY: “Do family members of military get any special protection?”

• Qualifying exigency. The FMLA provides up to 12 weeks of FMLA leave to qualified employees while the employee’s spouse, son, daughter, or parent (the military member or member) is on covered active duty or is called to covered active duty status. This only applies to employers with 50 or more employees.
• Military caregiver. Eligible employees are entitled to 26 weeks of leave during a single 12-month period if the employee is the spouse, son, daughter, parent, or next of kin caring for a covered service member with a serious illness or injury. Although this only applies to employers of 50 or more employees, many states have also passed legislation allowing employees leave to spend time with deployed or recovering family members in the military, which applies to smaller employers as well.

MAKE MILITARY LOA A POSITIVE EXPERIENCE.

When an employee tells you they are being deployed, it can be shocking, inconvenient, and disruptive for all parties involved. However, it doesn’t have to be that way! Use the following “Do’s and Don’ts” to make it a positive experience:

• DO: Ask the employee if they know the general timeframe for departure and return.
• DON’T: Ask for a specific return/start date.
• DO: Plan for replacement staff. Give yourself a buffer on each side of the employee’s estimated dates. You will want extra time for training and unexpected changes in service dates.
• DON’T: Ask whether the employee plans to return to work upon their homecoming. Even employees who tell their employers that they do not intend to seek reemployment do not forfeit the right to reemployment after service.
• DO: Ask the employee if they plan to continue their employer-based health plan during their deployment.
• DON’T: Suspend benefits that you provide to other employees who are on a leave of absence.
• DO: Consider turning a negative into a positive by participating in the “Statement of Support Program.” This program supports Reservists and National Guardsmen through employers voluntarily making a formal or informal public pledge to comply with the USERRA and to support them and their families. A pledge is easy to do, and could benefit your employees, your business, and your office morale.

Three Things You Can Take Away:

1. Supporting our troops when they are deployed is not just a moral obligation, it’s the law.
2. Employers can greatly benefit from the leadership, loyalty, and drive demonstrated by those serving in the uniformed forces.
3. When employing those in the military, make sure they are not disadvantaged in any way because of their service, and are promptly re-employed upon their return.

Have a question, or need help with a specific situation in your practice? Members may call 866-414-6056 to speak with an advisor.