FMLA Regulations and the Uniformed Services Employment and Reemployment Rights Act

by on February 16, 2009 · 0 Comment POSTED IN: HR Info Center

FMLA eligibility and the USERRA

What is the Uniformed Services Employment and Reemployment Rights Act (USERRA)?

USERRA is a Federal law that provides reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service. It also prohibits employer discrimination against any person on the basis of that person’s past military service, current military obligations or intent to join one of the uniformed services.

What effect does USERRA have on FMLA eligibility requirements?

USERRA requires that service members who conclude their tours of duty and who are reemployed by their civilian employers receive all benefits of employment that they would have obtained if they had been continuously employed, except those benefits that are considered a form of short-term compensation, such as accrued paid vacation.

If a service member had been continuously employed, one such benefit to which they might have been entitled is FMLA leave. The service member’s eligibility will depend upon whether the service member would have met the eligibility requirements under FMLA regulations if they had not performed their military duty.

How should the FMLA regulations covering 12 months of employment be calculated for returning service members under USERRA protection?

USERRA requires that a person reemployed under its provisions be given credit for any time/months he or she would have been employed but for the military tour of duty in determining eligibility under FMLA regulations.

A person reemployed following service in the Armed Forces should be given credit for the period of military duty towards the months-of-employment eligibility requirement under FMLA regulations.

Each month served in the Armed Forces counts as a month actively employed by the employer. The 12 months of employment do not have to be consecutive to meet this FMLA requirement.

For example, someone who has been employed for 9 months is ordered to active Reserve or National Guard duty for 9 months. Upon return, the person has worked, for FMLA eligibility purposes, more than the required 12 months. (9 months actually employed plus 9 months while serving in the military)

How should the 1250 hours-of-service requirement in FMLA regulations be calculated for returning service members?

An employee returning from military duty should be credited with the hours-of-service that would have been performed but for the period of military service in determining FMLA eligibility.
In order to determine the hours that would have been worked during the period of military service, the employee’s pre-service work schedule can generally be used for calculations.

For example, Joe works 40 hours per week for a lumberyard. He returns to his job following 20 weeks of National Guard service. Joe requests leave under the FMLA to care for his mother. His FMLA eligibility is determined by the hours he would have worked during his National Guard service (20 x 40 = 800 hours) plus the hours actually worked during the 12-month period prior to the start of his National Guard duty to determine if he meets 1250-hour requirement under FMLA regulations.

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