What is USERRA and how does it differ from the FMLA military expansion provision? When does USERRA apply and when should you grant an FMLA leave relating to military service?
The Uniformed Services Employment and Reemployment Act (USERRA) was passed by Congress in 1994 to protect the employment and benefits of an employee who is a member of the armed services while he or she is on military leave. Points to remember:
- USERRA entitles an employee to return to work at his or her “escalator position,” i.e., a position of comparable seniority, status, and pay to which the employee “would have attained with reasonable certainty” but for the absence for service.
- Under the absence, an employer may not discharge a reinstated employee for one year from the date of the individual’s re-employment.
- Employees who leave work may elect to continue with their COBRA-like benefits while on military service for themselves and their beneficiaries for up to 24 months.
- Employees also have the right to be reinstated in the employer’s health plans when reemployed, generally without any waiting periods or exclusions except for service-connected illness or injuries.
Finally, USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services.
In 2008, the Military Family Leave Provisions of the Family and Medical Leave Act were expanded to protect the employment and benefits of employees who have a family member in the armed services who is called to or is on active duty and is injured, or who is in the military reserves or National Guard and has a qualifying exigency, or urgent need.
Points to remember:
- Employees may use their 12- week entitlement to address certain qualifying exigencies
- Qualifying exigencies may include: attending military events, arranging for alternative child-care, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.
- Employees may take up to 26 weeks of leave during a single 12-month period to care for a covered service member who has a serious injury or illness incurred in the line of active that may render the service member medically unfit to perform his or her duties.
Both leaves are similar in that they protect the employee’s jobs and benefits. The main difference is that USERRA should be applied when the leave is needed by an employee who is a member of the armed forces and the FMLA expansion applied when employees have a family member in the armed services who is called to or is on active duty and is injured, or who has a qualifying exigency.
BCN Services can offer assistance on these and other human resources matters, providing guidance to your company and your staff. Please contact us here if we can help.
Lisandra Quinones, HR Administrator