Employers are obligated to offer a stable employment environment to those employees who elect to serve in the military as well as those returning from active duty. There are also federal and state policies that further protect veteran and active-duty job security. These protective measures offer service members and veterans peace of mind, enabling them to perform their duties efficiently. Let’s have a look at them.
Federal Policies for Military Leave
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and the Family and Medical Leave Act (FMLA) are federal laws related to military leave and military family leave, respectively.
USERRA
USERRA protects the civilian employment rights of service members. This law mandates that companies offer a leave of absence to those employees who enlist for military service while employed. It also enables their re-hire after completion of their term of service. Upon their return, the law also protects against discrimination in the workplace based on a returning service member’s affiliation with the military.
The nature of the role to which veterans can return depends upon the duration of their service. If the term of service lasts for 90 days or less, the employee has the right to resume his or her job under the same position or the position that would have been attained if military service had not been undertaken. However, for those who re-join their civilian job after serving in the military for more than 90 days, their employer might consider a different role, while still guaranteeing employment.
FMLA
FMLA offers qualifying employees up to 12 weeks of unpaid leave each year to care for family members or relatives with a critical health condition. Any employee who has worked 1,250 hours in a single year is entitled to the benefit. The law also grants any employee who is also a military spouse, parent, child, or next of kin to take up to 26 working weeks of FMLA leave during a single year in order to care for a service member with a serious health condition. This is specifically termed as military caregiver leave under FMLA.
State Policies
Most states have developed their own laws to protect military leave. These laws vary in comparison to federal law. However, some states have adopted the same family military absence policy as the FMLA. Employers must be aware of the applicable laws of their state relative to the universal federal mandates.
Eligibility
There are different military duties protected under the federal statutes safeguarding military leave. This includes leaves of absence taken by the service members for National Guard or Army Reserve deployment, active duty, funeral honors duty, and recurring training.
How to Request Military Leave
Prior to departure for service, an employee should provide a written or verbal notice to his or her employer. The USERRA does not define a specific timetable for offering notice; however, the Department of Defense suggests that employees give at least 30 days’ advance notice to their employers.
During the Military Leave of Absence
As a best practice, employers should have a protocol in place to account for absences precipitated by military leave. For example:
1. Reassign Work
Employers should plan to leverage temporary employees to meet their immediate business needs as longer term absences arise. Hiring replacements is also a good option but keep in mind the reinstatement rights of the returning military members.
2. Keep in Touch
An employee that has committed to a military leave of absence should not be forgotten. Rather, the employer should attempt to remain in contact with him or her. In addition to boosting morale, this outreach will enable communication throughout the term of service, enabling the business to accurately gauge a timetable for return.
What Happens Upon the Conclusion of Military Leave?
Once a term of service is complete, the returning employee must notify the employer of his or her intent to return to work, and the date and time of the return. It is incumbent on the employer to take the steps necessary to ensure a smooth and beneficial transition for all parties. Managers should cooperate with HR and discuss how to make these employees feel like a part of the workforce again. Taken as a whole, the below is the general timeline for a returning veteran:
1. Re-Employment
According to USERRA, it is mandatory for employers to re-employ the members of uniformed forces and assign them the position they would have earned if not for their military leave of absence. They may need training to perform in a new or unfamiliar role. As such, it’s critical that employers immediately reorientate those returning from the USERRA leave and provide practical training if necessary. This will help polish both hard and soft skills in veterans.
2. Accommodating the Disabled
If a servicemember returns with a disability, the employers must be ready to accommodate them. According to USERRA, if an employee is unable to perform the duties of the position to which he or she is entitled, the employer is obligated to offer a position that is comparable to the prior role. On the other hand, the law also doesn’t mandate that employers re-engage or hire veterans with disabilities if the job will impose hardships on them.
Fringe Benefits for Employees on Military Leave
USERRA ensures that employees on military leave receive the same benefits from their employer as other workers. Below are some of the occupational benefits that they can expect to receive:
1. Health Insurance
Employers are not liable to provide health insurance to those employees who go on military leave. However, if the leave taken is of less than 31 days, the employer is required to pay a small portion of the premium. Those who take more than 31 leaves are granted access to COBRA continuation coverage at their express discretion.
2. Paid Leaves
As employers usually require employees to use their vacation days, many make the mistake of thinking they can do the same for those who are on military leave. This is not the case. Whether an employee gets paid-time-off or additional vacation days, it depends on how the benefits are attained and how they are treated by the employer under leave policies.
3. Retirement Plan
Taking a USERRA leave doesn’t mean an employee has taken a break from service.; it means that they are entitled to the benefits received before starting the military service. It is up to the employer to design a favorable retirement plan for all employees, which may include a set of defined benefits or contribution plans within.
4. Protection from Discharge
Under USERRA, an employee who has served in the military for 181 days or more cannot be discharged without cause. However, those who have been in service for just 30 days or less will not be offered this benefit.