Managing Military Leave and Military Family Leave

Overview

U.S. employers play a major role in supporting national security by providing a stable employment environment to employees called to serve in the military—and to their families, who must continue to thrive without them. The comfort provided by a job to come home to and benefits to rely on can make all the difference to an employee on military assignment.

Military deployments often rely heavily on reserve and National Guard troops drawn out of civilian jobs, and state governors consistently call on National Guard units to respond to natural disasters around the country. The family members of military personnel may also need leave for reasons related to a family member's military service.

The U.S. Congress and several states have enacted leave laws that recognize and address the impact of military service on both service members and their families, and many employers go above and beyond what is required by law to support the need for military-related absences.

This toolkit is meant to support employers' compliance with applicable leave laws and to help employers successfully manage military-related absences. It discusses the following topics:

• Federal and state military leave and military family leave statutes.
• Practical application of these laws, including the obligations of employers and employees before, during and after military leave.
• Compensation and benefits issues associated with military-related leave.

Federal Statutes

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and the Family and Medical Leave Act (FMLA) are the primary federal laws related to military leave and military family leave.

USERRA

USERRA is a federal statute that protects service members' and veterans' civilian employment rights. USERRA requires employers to provide leaves of absence to workers who enter military service while employed and to re-employ them upon the conclusion of their service. USERRA also protects service members from discrimination in the workplace based on their military service or affiliation. See Do USERRA regulations cover reserve duty, voluntary service and training?

USERRA applies to all employers, regardless of size, and to all regular employees, regardless of position, length of service, or full- or part-time status. It regulates leaves of absence taken by members of the uniformed services—including reservists—and the National Guard for training, periods of active military service (whether voluntary or involuntary) and funeral honors duty, as well as for time spent being examined to determine fitness to perform such service. USERRA also applies to persons serving in the active components of the armed forces and the National Disaster Medical System (NDMS) as well as reservists for the Federal Emergency Management Agency (FEMA) when they are deployed to disasters and emergencies on behalf of FEMA.

USERRA provides four important benefits related to military leave:

• Protection from discrimination based on military status or military obligations.
• The right to re-employment upon conclusion of military service.
• Protection from termination for a period of time after returning from service.
• Certain rights in connection with pensions and other employee benefits plans.

The nature of the position the returning employee is entitled to depends on the duration of the military service. Generally, after service of 90 days or less, the employee is entitled to return to the same position or the position he or she would have attained but for taking leave. The returning employee is entitled to all pay increases, seniority increases and other benefits that would have been earned but for the absence.

For employees returning from leaves longer than 90 days, employers may consider other positions that closely approximate the job an employee would have held or attained in terms of seniority, status and pay.

Because employees must be treated as if they never left work for military service, this is often referred to as the "escalator principle": Employees step off the escalator when they leave their civilian job for military purposes. They step back on the escalator when they return to the job, not where they stepped off, but where the escalator would have taken them had they never left. According to the Department of Labor (DOL):

The re-employment obligation has three exceptions:

• The employer's circumstances have changed and would make such re-employment impossible or unreasonable.
• Re-employment would impose an undue hardship on the employer.
• The employment was for a brief, nonrecurring period with no reasonable expectation that such employment would continue indefinitely or for a significant period.

Subject to certain exceptions, an employee must meet several eligibility requirements to attain re-employment rights:

• The employee must give notice of the need to leave for military service. The notice may be oral; employers are not permitted to demand written notice.
• The employee must be released from service under honorable conditions.
• The employee must not exceed five years of military leave with any employer (some exceptions apply). Annual training and monthly drills do not count against the cumulative total.

For additional information on USERRA compliance, see:

Employer Support of the Guard and Reserve: USERRA FAQ

U.S. DOL: USERRA Advisor

Military Personnel in a Civilian Workforce: Top 5 USERRA Questions

The FMLA and military-related leave

The FMLA generally provides qualifying employees of covered employers with up to 12 weeks of unpaid leave per year to care for their own or a family member's serious medical condition. FMLA leave is available to employees who have worked 1,250 hours in a 12-month period within 75 miles of a site having at least 50 employees. See U.S. DOL: Family and Medical Leave.

The FMLA was amended in 2008 to add the following military family leave entitlements:

1. To permit an eligible employee who is the spouse, child, parent or next of kin of a current service member with a serious injury or illness incurred in the line of duty on active duty to take up to 26 workweeks of FMLA leave during a single 12-month period to care for the service member (military caregiver leave).
2. To allow an eligible employee whose spouse, child or parent is a member of the National Guard or reserves to take up to 12 workweeks of leave for qualifying exigencies arising out of the military member's active duty or call to active duty in support of a contingency operation (qualifying exigency leave).

Additional amendments to the FMLA were later added that expanded the military caregiver leave provisions to entitle an eligible employee to take leave to care for certain veterans with a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty, and to allow military caregiver leave for current service members with serious injuries or illnesses that existed prior to service and that were aggravated by service in the line of duty on active duty.

The qualifying exigency leave provisions were also expanded to entitle an eligible employee whose spouse, child or parent is a member of the regular armed forces to take qualifying exigency leave (previously only available to spouses, children and parents of National Guard and reserve members) and a foreign deployment requirement was added for all military members (National Guard, reserves and regular armed forces) whose spouse, child or parent wants to take qualifying exigency leave.

See:

Fact Sheet #28M: The Military Family Leave Provisions under the Family and Medical Leave Act

Fact Sheet #28M(a): Military Caregiver Leave for a Current Servicemember under the Family and Medical Leave Act

Fact Sheet #28M(b): Military Caregiver Leave for a Veteran under the Family and Medical Leave Act

Family and Medical Leave Act Advisor – Military Family Leave

What is FMLA military caregiver leave, and who is eligible to take it?

The DOL provides model forms to assist employers in managing military caregiver leave and qualifying exigency leave.

The combined result of USERRA and the FMLA

Together, USERRA and the FMLA create four different types of legally protected leave:

• Military leave for an employee's own service-related absence.
• Military family leave for an employee who has a family member called to active duty.
• Medical leave for an employee who is injured in the line of duty.
• Family medical leave for an employee who has a family member injured in the line of duty.

In addition, both USERRA and the FMLA create post-leave job protections, although USERRA job protections differ substantially from FMLA job protections in terms of the escalator principle and other factors. Both USERRA and the FMLA have anti-discrimination and anti-retaliation provisions.

State Statutes

Most states have laws governing military leave in some fashion. The state laws vary widely among themselves and in comparison with the federal leave laws. In addition, several states have statutes governing family military leave similar to that provided by the FMLA regulations and amendments.  

Employers should make themselves aware of all applicable laws and take care to provide the greater benefits if the laws differ. State military leave laws can be found in SHRM's Multistate Laws Comparison Tool.

Local representatives from the Employer Support of the Guard and Reserve (ESGR) may also be able to assist with state law compliance.

Preparing for Military-Related Absences

As a strategic matter, employers are advised to create a comprehensive plan for dealing with leaves related to military service.

Compliance readiness

To respond effectively to a request for military leave or military family leave, organizations should prepare themselves before such a request is submitted:

• Determine the applicable law. On one extreme, an organization might be subject only to USERRA and one state law. On the other extreme, an employer might be subject to USERRA, the FMLA, multiple state laws and even municipal laws.
• Develop policies and procedures in alignment with the organization's plan.
• Create forms for employee use that comply with the applicable laws and elicit the information needed to support continued compliance.
• Seek legal review of policies, procedures and forms by qualified employment counsel.
• Communicate policies and procedures by means of handbooks, memos, intranet postings, and manager and employee training.
• Post required notices. See Employee Rights and Responsibilities Under the Family and Medical Leave Act and Your Rights Under USERRA, the Uniformed Services Employment and Reemployment Rights Act.

When an employee lets an employer know about the need for military leave, the employer does not have the right to require documentation supporting the need for leave. Many employees will provide it; however, there may be situations in which employees do not have such documentation. Employees must provide notice, but it may be verbal or written and may be informal. It does not need to follow any particular format and the law does not provide a time frame in which employees are to provide notice. The defense department recommends that employees provide at least 30 days advance notice to their employer when it is feasible to do so.

Offering support beyond what is legally required

In addition to merely complying with the law, employers can take steps to do more and to communicate their support for service members and their families both internally and externally. First, organizations should assess the internal and external climate for doing more than the law requires. For example, although not required to do so, many private employers pay the difference between an employee's regular salary and his or her military pay as a matter of patriotism and corporate values. Many large firms also report offering benefits that exceed USERRA requirements. See Are veterans entitled to time off on Veterans Day?

During Military-Related Leave

Employers need to have a plan of action for when employees are out on military leave or military family leave to ensure that business operations are not disrupted and that all employees—both those on leave and the workers continuing to perform the work—are supported.

Reassigning work

While an employee is on military leave or military family leave, the work continues and their regular job must be done. Some employers use the services of temporary employees to meet their immediate needs, whereas others hire regular replacements, keeping in mind the reinstatement rights of the returning service members. Organizations that perform sensitive or classified work may be unable to use temporaries if the work requires a security clearance. In these cases, the employer may simply have to increase the workload of the remaining employees or temporarily reassign employees to meet the unfilled requirements.

Keeping in touch

To the extent possible, and with due regard to privacy concerns, employers should keep employees informed about the status of a worker on military leave or military family leave. A service member or family member out of sight should not be out of mind. Similarly, the worker on leave should be kept apprised of developments in the workplace. An occasional care package from an employer to a service member would likely be greatly appreciated.

By keeping in touch with an employee on leave, an employer can also stay informed about the employee's anticipated return-to-work plans and can better prepare for the employee's reinstatement.

After Military Leave

Employers should welcome returning service members and their family members and affirm their contributions. In addition, organizations should support these employees with patience and encourage them to re-engage with the workplace. Managers should work with HR to discuss how the returning employees will transition back into the workforce.

Re-employment

Bearing in mind USERRA's so-called escalator principle, the employer must re-employ returning service members in the job that they would have attained had they not been absent for uniformed service. This may require training the returning employee to function in a new position. Employees returning from USERRA leave must also receive the seniority, status, pay and other benefits to which they would have been entitled had they not gone on leave to perform uniformed service. See What is an employer's obligation under USERRA to return employees on military leave to work?

Employees returning from military family leave have the same re-employment rights as others returning from FMLA leave. See FMLA Regulation §825.214—Employee right to reinstatement.

Reorientation

Employees returning from an extended leave may need to be reoriented to the organization just as a new hire would. Depending on the length of the leave, a great deal may have changed during the employee's absence. There may be new policies and procedures in effect, new workers may have been hired, and others may have resigned or have been fired or laid off.

Any returning employee may need training to use new technology. Returning service members may also come back with additional skills, including leadership competencies. Employers should find out if that is the case and attempt to tap into those individuals' enhanced capacity. Military personnel will also often be accustomed to working at a very high, intense level. Organizations can take advantage of the renewed sense of confidence and vigor a returning service member may have for the job.

Disability accommodations

Employers must be prepared to accommodate returning service members on request if they return with a disability. In that process, employers must comply with the Americans with Disabilities Act (ADA) and state disability discrimination laws, as well as with USERRA. Under USERRA, for example, if employees cannot perform the particular job to which they are entitled to upon return, the employer must provide the nearest approximation to the previous job in light of the limits of the disability. USERRA does not obligate employers to re-employ, employ or otherwise accommodate employees with disabilities if the accommodation would impose an undue hardship on the employers.

A disability need not be physical in nature. Some returning service members may have symptoms of post-traumatic shock or stress, for example. Common responses seen in these individuals include anger, depression, increased use of alcohol or drugs, difficulty with interpersonal relationships, and reminders of trauma, such as nightmares and flashbacks. Symptoms may not appear until weeks or months after the veteran returns. An organization's employee assistance program (EAP) should be equipped to assist in such circumstances.

See Veterans and the Americans with Disabilities Act: A Guide for Employers and EARN: Disabled Veterans.

Successful Reinstatement

To help returning service members successfully resume their civilian work identity, organizations may want to consider the following general suggestions from an EAP provider:

• Provide emotional support as needed, and keep lines of communication open. Be the first to reach out.
• If the employee seems to want to discuss the tour of duty, ask about it. Sometimes talking about and describing an event or situation is helpful.
• If the employee seems to prefer not to talk, respect the individual's privacy.
• Believe the employee; their stories may be unlike anything you have heard before and nothing you are likely to experience firsthand.
• Understand that people adjust on different schedules. Patience goes a long way.
• Recognize that the employer or manager does not have to, and may not be able to, solve all problems.
• Be attuned to the possibility that the individual may need more than a friend or family member to talk to—returning employees may benefit from professional help such as an EAP.

A change of pace

There are significant differences between military and civilian work environments. For example, the battlefield requires split-second decisions, while in the business world, a slower approach may be the norm. Military operations run on strict rules and procedures, whereas a private employer's workplace may be lax when enforcing rules. These contrasts can be frustrating to returning employees. Organizations may want to arrange for some preventive coaching in this regard to create realistic expectations.

Emotional ups and downs

Just as returning service members reunite with their families, they also reunite with their "work families." Their business homecoming may involve a lot of emotion, pats on the back, the telling of war stories and so on. At some point—perhaps a month or two after returning—the warm welcome becomes history, the employee settles into the workplace routine and reality sets in. That is when the employer should be attuned to how the employee is adjusting to post-combat work life. Returning family members will also have emotional peaks and valleys; employers should be mindful of their needs, as well. See How to Encourage Employees to Use Mental Health Benefits.

Hostility or harassment

Unfortunately, in lieu of an enthusiastic welcome back, some returning service members may be greeted with open hostility. Organizations should take care not to let anti-war sentiments be inflicted on returning service members. Not only would this be extremely inappropriate in the workplace, but it might even constitute unlawful harassment.

Compensation and Benefits Aspects of Military Leave

Military leave raises a number of issues in the realm of compensation and benefits. As a general principle, USERRA prohibits employers from discriminating in pay and benefits against those on military leave in comparison with those on other forms of leave. For compensation and benefits purposes, military family leave is treated the same as other FMLA leave.

Compensation

Both USERRA and the FMLA generally provide for unpaid leave; however, other federal and state laws may include pay obligations in certain situations.

Several recent court cases have brought military leave pay obligations into the spotlight. In general, the courts have found that USERRA requires employers to pay employees for military leave if the leave closely resembles other types of leave for which employees are paid. However, there is little clarity on what other types of leave are comparable to a military-related absence. This topic is one which employers should keep a close eye on. Seek legal counsel as needed. See USERRA May Require Employers to Pay Reservists on Military Leave and When Does Military Leave Have to Be Paid?

An employee returning from military leave also has the right to certain seniority-based bonuses under USERRA. See Are companies required to pay bonuses to returning military service employees?

The Fair Labor Standards Act (FLSA). FLSA regulations prohibit employers from docking an exempt employee's pay for absences due to military leave in any workweek in which the employee performs any work for the employer. That is, exempt employees must be paid their full salary (minus military pay) for any workweek in which they take military leave and also perform any work for the employer. Employers that fail to comply risk converting the exempt employee into a nonexempt employee, thus becoming liable for overtime pay. See Do I have to pay an employee on military leave? Can I require the employee to use paid time off/vacation time?

For FLSA purposes, employees on military family leave are treated the same as any other employee on FMLA leave.

Discretionary pay. Some employers choose to make up the difference between civilian pay and military pay. Employers cannot deny military leave based on whether an employee's service is voluntary or involuntary, but they have far greater flexibility when it comes to compensation. According to the 2019 SHRM Benefits Research Report, 22 percent of surveyed employers provide paid military leave beyond what is required by law.

Employee Benefits

Both USERRA and the amended FMLA provide varying degrees of benefits protection for employees on mandated leave. See How to Administer Military Leave Benefits Under USERRA.

Health insurance. As a general rule, employers do not have to pay the cost of health insurance for employees on military leave, but if the leave is for fewer than 31 days, the employer must continue to pay at least its portion of the premium. Service members continue to pay their portion unless the employer chooses to do so. For longer leaves, employees have COBRA rights and can be required to pay the full cost of their continued participation in the employer's plan. However, if an employer pays the cost of coverage (in whole or in part) during other nonstatutory leaves, it probably must do the same for military leave. See Must an employer continue health care benefits for employees on military leave? and How must benefits be reinstated for an employee returning from a long-term military leave?

For employees on military family leave, employers must comply with the usual FMLA rules on this issue.

Flexible spending accounts. The Heroes Earnings Assistance and Relief Tax (HEART) Act of 2008 (H.R. 6081) generally waives the "use it or lose it" rule that applies to health care flexible spending accounts, allowing military reservists called to active duty to receive distributions from unused funds without penalty. See IRS Notice 2008-82.

Paid leave benefits. Because employers can require employees on FMLA leave (including military family leave) to use their vacation days, some employers mistakenly assume they can do the same for those on military leave. However, while employees on military leave have the right to use their vacation pay, they cannot be required to do so. Whether an employee earns additional vacation time or other paid-time-off benefits during military leave depends on how the benefits are earned and how the employer treats them under other leave policies. See Failure to Accrue Sick Leave While Deployed Does Not Violate USERRA.

Retirement. For the purposes of the employer's retirement plan, military leave is not considered a break in service. As a result, employees cannot forfeit any benefits accrued prior to their military service. In terms of employer contributions, an employer's obligations differ depending on whether the retirement plan is a defined benefits plan or a defined contribution plan. See Retirement Plans FAQs Regarding USERRA and SSCRA.

Resources and Tools

Toolkit: Employing Military Veterans

How to Administer Military Leave Benefits Under USERRA

Military Leave Insurance Continuation Letter

Military Leave of Absence Policy

Employer Guide to Hiring Veterans

Government agencies

U.S. Department of Labor

U.S. Department of Veterans Affairs

Organizations

Employer Support of the Guard and Reserve