USERRA – FMLA: Questions and Answers

by on January 15, 2010 · 15 Comments POSTED IN: HR Info Center

The effect of the Uniformed Services Employment and Reemployment Rights Act on leave eligibility under the Family and Medical Leave Act.

Question: 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. Enacted in 1994, USERRA traces its roots to 1940. It is codified at 38 U.S.C. § 4301 to § 4333.

Question: What is the Family and Medical Leave Act (FMLA)?

The Family and Medical Leave Act is a Federal law that provides “eligible” employees of a covered employer the right to take up to 12 workweeks of unpaid, job-protected leave, during any 12 months, for the birth and care of a newborn, adoption or foster care, or a serious health condition of the employee or certain family members. An “eligible” employee is one who meets certain requirements specified in the statute. FMLA was enacted in 1993 and is codified at 29 U.S.C. § 2601 to § 2654 and at 5 U.S.C. § 6381 to § 6387, relating to Federal civil service employees.

Question: What are the leave eligibility provisions of the Family and Medical Leave Act?

In order to be eligible for leave under the Family and Medical Leave Act, employees must meet several eligibility criteria. Two FMLA criteria affected by USERRA are: (1) the person must have been employed by the employer for at least 12 months; and (2) the person must have worked at least 1250 hours for that employer during the 12 month period preceding the start of the leave. The requirement of 1250 hours worked applies to persons employed by private employers, state and local governments, and the Postal Service.

Question: What effect does USERRA have on these 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 he or she might have been entitled is leave under the Family and Medical Leave Act. The service member’s FMLA eligibility will depend upon whether the service member would have met the eligibility requirements outlined above had he or she not performed military service.

Question: How should the 12-month Family and Medical Leave Act requirement be calculated for returning service members?

USERRA requires that a person reemployed under its provisions be given credit for any months he or she would have been employed but for the military service in determining eligibility for FMLA leave. A person reemployed following military service should be given credit for the period of military service towards the months-of-employment FMLA eligibility requirement. Each month served performing military service counts as a month actively employed by the employer. For example, someone who has been employed by an employer for 9 months is ordered to active military service for 9 months after which he or she is reemployed. Upon reemployment, the person must be considered to have been employed by the employer for more than the required 12 months (9 months actually employed plus 9 months while serving in the military service) for purposes of FMLA eligibility. It should be noted that the 12 months of employment do not have to be consecutive to meet this FMLA requirement.

Question: How should the 1250 hours-of-service Family and Medical Leave Act requirement be calculated for returning service members?

An employee returning after military service should be credited with the hours-of-service that would have been performed but for the period of military service in determining eligibility under the Family and Medical Leave Act.

Accordingly, a person reemployed following military service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1250 hour requirement.

In order to determine the hours that would have been worked during the period of military service, the employee’s preservice work schedule can generally be used for calculations. For example, an employee who works 40 hours per week for the employer returns to employment following 20 weeks of military service and requests leave under the Family and Medical Leave Act. To determine the person’s eligibility, the hours he or she would have worked during the period of military service (20 x 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1250-hour FMLA requirement is met.

Question: Where can I get more information about USERRA?

The Department of Labor’s Veterans’ Employment and Training Service (VETS) administers USERRA, provides technical assistance/educational outreach, and investigates complaints. Information about USERRA is available on the VETS Web site. There you will find USERRA information as well as a directory of local VETS offices. This is one of a series of fact sheets highlighting U.S. Department of Labor programs. It is intended as a general description only and does not carry the force of legal opinion.

15 Comments on This Post

  1. MS.WILLIAMS
    May 19, 2010 - 6:56 pm

    I WAS FIRED DUE TO MY FMLA RUNNING OUT. I WAS THEN BROUGHT BACK UNDER A TEMP AGENCY FOR THE SAME POSITION. IWAS TOLD THAT I COULD HAVE BEEN REHIRED UNDER A FMLA LAW. WHAT IS THAT FMLA LAW?

    • rliblogs
      July 8, 2010 - 9:19 am

      Thanks for your comment. We can't respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

  2. Mbasmd
    July 21, 2010 - 7:41 am

    Are you allowed to collect unemployment while out on FMLA?

    • rliblogs
      July 22, 2010 - 4:17 pm

      Thanks for your comment. We can't respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

      Michael Boyette
      Executive Editor
      Rapid Learning Institute
      PO Box A
      Morton, PA 19070

      mboyette@rapidlearninginstitute.com
      484-479-2715

  3. Anonymous
    July 22, 2010 - 8:17 pm

    Thanks for your comment. We can’t respond to questions about specific
    situations or provide legal advice, but we invite other readers to post
    comments or responses to this question. We encourage you to seek guidance
    from your HR department or, for legal questions, consult an attorney.

    Michael Boyette
    Executive Editor
    Rapid Learning Institute
    PO Box A
    Morton, PA 19070

    mboyette@rapidlearninginstitute.com
    484-479-2715

  4. M11STARR3
    October 13, 2010 - 4:16 am

    CAN AN EMPLOYEE USE BOTH FMLA AND CFRA AT THE SAME TIME FOR SAME DISABLITY IN A 12 MONTH PERIOD?

  5. M Vanhatten
    October 21, 2010 - 9:25 pm

    If I use FMLA Leave during Christmas/New Years holiday season, do the three paid holiday days count in the FMLA leave time? Are thoses three paid holidays deducted from the 12 week FMLA leave time?

  6. Ken
    November 30, 2010 - 8:53 pm

    When an employee is taking full week increments of FMLA leave and a holiday occurs within the week, the week is still counted as a full week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one week, the intervening holiday won’t count against the 12-week entitlement unless the employee was otherwise scheduled and expected to work during the holiday.
    Your company is allowed to have a less-restrictive policy if they choose such as counting 5 work days as a week as opposed to Sunday through Saturday if that works in the employee’s favor. In that case for those two weeks in question you would have missed one week and two days and would need to miss three more work days to count as a second week toward the maximum.

  7. Kim
    June 14, 2011 - 7:15 pm

    I work for a public school district.  I am pregnant and due on July 1.  My district is telling me that my maternity leave will start the day I have the baby. However, I am on summer break and school is not in session.  My contract dates are 8/3/11-6/6/12.  Can they do that?  My understanding of the FMLA law is that I can take my leave whenever I want to.  Since I am not under contract, I should be able to start my leave on August 3.  Please help.  thank you!

  8. Steelercoll1
    September 8, 2011 - 1:04 am

    First 12 week FMLA leave was in January and now I need another operation.  Can I go on FMLA again in the same year?

  9. Jimboindy
    October 6, 2011 - 10:14 pm

    can a person on family medical leave work a part time job for another employer

  10. Jimboind
    October 6, 2011 - 10:16 pm

    can a person on family medical leave be employed part time

  11. Bridget
    November 16, 2011 - 8:42 am

    My mother-in-law is on FMLA because she has COPD. On 11-22-11 she is having a cardiac catherazation and a possible stint put in. Does she need to fill out another FMLA form or would that fall under the one she already has?

  12. Nevada
    March 27, 2012 - 6:49 pm

     I began my maternity leave and FMLA on May 17 2011.  I took 12 weeks off and returned to work in August.  I quickly became pregnant again and am now due to give birth May 26th.  My employer is telling me that I cannot take FMLA because it has not been a year since I returned from FMLA. Is this correct?  Thanks

  13. Sandra
    July 14, 2016 - 4:50 am

    I started FMLA and flew overseas to care for my mom who was supposed to return with me and i now have reduced my hours via FMLA to part time which I have been approved for by my employter. My mom will now be returning in two weeks, and I am back home. I need to prepare my home for her as well. Am I still covered undre FMLA to be part time?

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