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. ยงยง 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.
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