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Employment
Protections for Members of the Armed Forces
On January 28, 2008,
the President signed H.R. 4986, a national defense authorization act that
includes amendments to the federal Family and Medical Leave Act (“FMLA”). The new amendments to the FMLA provide (a) up
to six (6) months of leave for family members caring for military veterans
injured while on active duty in the U.S. Armed Forces and (b) twelve (12) weeks
of leave for family members of armed services personnel called up to active
duty under certain circumstances. These
changes to the FMLA take effect immediately.
H.R. 4986 modifies
the FMLA, which already provides qualifying employees up to 12 weeks of unpaid
leave each year to care for various serious health conditions suffered by the
employee or a family member.
The new amendments
to the FMLA more than doubles the available time off from work to care for
injured members of the Armed Forces. An
employee may take up to twenty six (26) weeks per year to care for an injured
service-member. The new bill also makes
a new category of employees eligible for leave – those employees with an
immediate family member who has been called to active duty.
Employers are advised to make the following changes to their existing FMLA policies to reflect these changes:
Employee
Entitlement
The FMLA amendments
contained in H.R. 4986 (“Armed Forces FMLA”) provide eligible employees unpaid
leave for any one, or for a combination, of the following reasons:
• A “qualifying exigency” arising out of a
covered family member’s active duty or call to active duty in the Armed Forces
in support of a contingency plan; and/or
• To care for a covered family member who has incurred an injury or illness in the line of duty while on active duty in the Armed Forces provided that such injury or illness may render the family member medically unfit to perform duties of the member’s office, grade, rank or rating. This benefit provides 12 weeks of FMLA leave due to a spouse, son, daughter or parent being on active duty or having been notified of an impending call or order to active duty in the Armed Forces. Leave may be used for any “qualifying exigency” arising out of the servicemember’s current tour of active duty or because the servicemember is notified of an impending call to duty in support of a contingency operation.
Duration
of Leave
When Leave Is Due To
a “Qualifying Exigency”: An eligible employee may take up to twelve (12)
workweeks of leave during any 12-month period.
When Leave Is To
Care for an Injured or Ill Service Member:
An eligible employee may take up to twenty six (26) workweeks of leave
during a single 12-month period to care for the service-member. Leave to care for an injured or ill service-member,
when combined with other FMLA-qualifying leave, may not exceed 26 weeks in a
single 12-month period.
Armed Forces FMLA runs concurrent with other leave entitlements, including the leave entitled authorized by the California Family Rights Act (“CFRA”).
Other
Military Leave Entitlements
Employers should
also keep in mind that state and federal law provide additional employment
protections for members of the Armed Forces.
Long Term Leave. Under both state and federal law, employees
directed to participate in extended military duty in the Armed Forces may be
entitled to receive unpaid military leave.
The Federal Uniformed Services Employment and Reemployment Rights Act
(“USERRA”) may extend this leave period for as long as five years (with certain
exceptions). Employees who return from
military leave may be entitled to reinstatement upon completion of military
service, provided such employees apply for reinstatement within the time
allowed by law.
Non-Discrimination. State and federal law also prohibits an
employer from discriminating against any member of the Armed Forces for taking
military leave. California Military and
Veterans Code § 394(f) makes it a misdemeanor to discriminate, discharge, or
otherwise discipline or prejudice a member of the Armed Forces based on
military status.
Military Spouse Leave. In California, employees who are “qualified
military spouses,” defined as employees who work twenty (20) or more hours per
week and who are married to a member of the Armed Forces actively deployed
during a military conflict to an area designated as a combat theater, may take
up to ten (10) days of unpaid time off each time the solider-spouse is on leave
from active deployment to the combat theater.
These employees are also protected against reprisals or retaliation for
electing to take military spouse leave.
The interaction of
these various employment protections for members of the Armed Forces can be
challenging. Employers are advised to
consult with experienced Human Resources professionals or employment law
counsel in developing and implementing their military leave policies.