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States Expand Employee Protection to Families of Servicemen

August 2007

Given the United States' current level of military activity, it is more important than ever for employers to comply with the laws governing military leave: federal and state laws alike.

by Paul J. Siegel, Esq.
Jackson Lewis LLP

With the continuing demands on the Reserve and National Guard, a growing number of states have been passing Family Military Leave Acts to supplement the protections afforded servicemen under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301-4333.

USERRA protects the service members by providing for:

  • Nondiscrimination based on military status
  • Reinstatement under the "escalator principle," i.e., to the position and pay that the employee would have held if the continuous employment of such person had not been interrupted
  • Other rights and benefits that are generally provided to individuals of similar status on a leave of absence
  • Continuation of medical benefits under the same terms and conditions as when actively employed if service is 30 days or less
  • Optional continuation of medical benefits for up to 24 months under terms similar to those of the Consolidated Omnibus Budget Reconciliation Act (COBRA)
  • All seniority rights and benefits upon return to work as if the employee had remained continuously employed

Typical benefits covered under USERRA would include seniority-based vacation allowances, pension credit and 401(k) contributions, and protection from discharge upon return to work, except for cause, for a period of time depending on the length of service.

At least six states have enacted laws to provide soldiers' family members limited unpaid leave protection. In general, the Acts allow the family members of active duty soldiers to take unpaid leave during periods leading up to or immediately following their family member's deployment and also during periods of leave while still on active duty. The new statutes vary, but employers should be cognizant of these new laws and prepared to adjust their leave procedures to comply. Currently, New York, Illinois, Indiana, Maine, Minnesota, and Nebraska have passed these laws.

New York

When the New York Family Military Leave Law became effective in August of 2006, it was the first state to have a family military leave law requiring employers to provide unpaid time off to family members [emphasis italics] of those on active duty in the military. The law requires employers with 20 or more employees to provide the spouse of a person on active duty in a combat theater or zone of operations up to 10 days of unpaid leave.

Under the New York law, time off may only be taken while the person in the military is on leave from active duty. To be eligible for leave, the employee must work for the employer from which leave is sought for at least 20 hours per week. This law does not require any minimum length of service for eligibility. Additionally, the employee is not required to give the employer notice prior to taking leave. Also, employers are not permitted to retaliate against employees who take such a leave.

Illinois

The Illinois Family Military Leave Act requires employers with 15 to 50 employees to provide up to 15 days of unpaid family military leave to the spouse or parent of a soldier called to military service lasting longer than 30 days. Employers with more than 50 employees must provide up to 30 days of unpaid leave. During the period of leave, the employee's health benefits must be maintained at the expense of the employee. Additionally, the employer cannot take any adverse actions against the employee for exercising his or her rights under this Act.

Under this Act, the employer has some rights as well. The employee must provide the employer with 14 days of notice prior to taking 5 or more days of leave, and employees are not eligible for leave under this Act unless they have exhausted all paid vacation, personal, or any other leave, except for sick or medical leave, that might be granted to the employee.

Indiana

The Indiana Military Family Leave Law went into effect July 1, 2007. Under this Act, employers with 50 or more employees must provide 10 days of unpaid leave to the spouse, parent, grandparent, or sibling of the person who is ordered to active duty. To be eligible, the employee must have worked for the employer for the 12 months prior to the leave date, and must have worked at least 1,500 hours during those 12 months. Additionally, the employee can only take the leave during three periods: (1) the 30 days before active duty orders are in effect; (2) the 30 days following the termination of the person's active duty; or (3) while the person is still on active duty but is on leave.

The employer has the right to require verification from employees of eligibility under this Act, as well as 30 days' written notice of the requested leave, when it is possible. The employee's health benefits can continue during the leave period at the employee's expense. Finally, the employee must be restored to the same position or one of equal status when he or she has returned from leave.

Maine

The current Family Military Leave Law requires employers with 50 or more employees to provide up to 15 days of unpaid leave to the spouse, domestic partner, or parent of the person ordered to active duty for a period of 180 days or longer. The employee must have been working for the same employer for 12 months or longer and for a minimum of 1,250 hours during the previous 12 months. Employees currently are eligible to take leave under this act only during the 15 days immediately prior to deployment or during the 15 days immediately following deployment. An employee who requests leave for 5 days or longer must notify the employer in writing at least 14 days prior to the leave. The employer has the right to require certification that the employee is in fact eligible for leave under this Act.

As of September 20, 2007, an amended Family Military Leave Law will become effective. The new law will make the Family Military Leave Law applicable to employers with 15 or more employees. Additionally, employees will be able to take leave not only during the 15 days prior to and following deployment, but also during periods when the person is on leave during active duty.

Minnesota

Employers must grant the parent, child, sibling, or spouse of a person killed or injured while on active duty in the military up to 10 days of unpaid leave. The employer has the right to require the employee to use any paid leave, except for sick or medical leave, prior to taking any unpaid leave under this Act. The employee is required to give the employer only as much notice as is possible prior to taking the leave. Additionally, employers are required to provide up to 1 day unpaid leave for the parent, child, sibling, or spouse of the person ordered to or returning from active duty to attend the send-off ceremony or homecoming.

Nebraska

Employers in Nebraska with 15 to 50 employees are required to provide up to 15 days of unpaid family military leave to the parent or spouse of a person being called to active duty for longer than 179 days. Employers with more than 50 employees must provide up to 30 days of unpaid family military leave. To be eligible under this law, the employee must have worked for the employer for at least 12 months prior to the requested leave and must have worked for at least 1,250 hours during that time period. An employee who requests leave for longer than 5 days is required to give the employer at least 14 days' notice prior to the time the leave is going to begin.

Additionally, employers are required to restore the employees to their original or equivalent positions when they return from their leave. While on leave, employees can continue to receive their health benefits at their own expense.

Conclusion

Employers need to be particularly aware of laws which expand protection to a previously unprotected group (i.e., family members). To ensure compliance, employers should encourage employees whose covered family members are on active duty to communicate their leave needs to the employer in a timely fashion. Communication will help prevent short-notice requests for leave and "close cases," denial of which may give rise to retaliation and other claims.


This article is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis LLP and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances.


Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.

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