Q: I have an employee who is in the National Guard, and they have just told me that they are being deployed to support an emergency situation in another state. They are not sure how long they will be gone. While I support their service, it will be extremely hard for our small practice to cover their position when they are gone. What are my options?
Thank goodness there are people such as your employee who are willing to serve in the National Guard, the reserves, and other military branches so that we can have adequate support for emergencies. With that said, it is understandable that an employee’s unexpected leave can create hardship on employers.
Without legal protection, employees who also serve in the military may not have a job when they return. For this reason, there are two federal laws – the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and the Family and Medical Leave Act (FMLA) that apply to military leave and military family leave. Both Acts provide eligible employees the right to, at minimum, unpaid leave, during their deployment and certain rights for re-employment upon their return.
FMLA, which was amended in 2008 to include military family leave entitlements, only applies to employers with at least 50 employees within a 75-mile radius. Specific employee eligibility requirements that can be found at the Department of Labor’s website – https://www.dol.gov/general/topic/benefits-leave/fmla. However, you said you are a small practice, so we’ll focus primarily on the other federal law, USERRA, for the purposes of this article.
USERRA applies to all employers, regardless of size, and to all regular employees, regardless of position, length of service or full-or part-time status. The law requires employers to provide leaves of absence and to re-employ workers who enter military service while employed. It applies to members of the uniformed services, including reservists, and National Guard members for training, periods of active military service (whether voluntary or involuntary) and funeral honors duty, as well as for time spent being examined to determine fitness to perform such service.
So, the answer is, you must re-employ the employee when they return from service. However, you may hire temporary employees, reassign work to other employees, and of course, hire additional employees to fill the void while they are on leave. The type of position the returning employee is entitled to depends on the duration of the military service. Commonly, for service of 90 days or less, the employee is entitled to return to the same position or the position he/she/they would have attained if they had not taken leave. The returning employee is entitled to all pay increases, seniority increases and other benefits that would have been earned during their time of absence.
For employees returning from leaves longer than 90 days, employers may place them into positions that closely resemble the job an employee would have held or attained in terms of seniority, status and pay.
According to USERRA, there are three exceptions for the employer related to re-employment:
- The employer’s circumstances have changed as to make such re-employment impossible or unreasonable.
- Re-employment would impose an undue hardship on the employer.
- The employment was for a brief, nonrecurring period with no reasonable expectation that such employment would continue indefinitely or for a significant period.
There are also specific eligibility requirements that employees must meet for re-employment such as providing notice of leave (employers must accept verbal notice and may not require supporting documentation), being released from service under honorable conditions, and not exceeding five years of military leave, not including annual training and monthly drills.
We strongly recommend that you have a policy related to military leave in your employee handbook. This helps everyone better understand and follow the law. Also, do not forget that you are required to post notice about USERRA in a place where employee notices are normally placed – https://www.dol.gov/agencies/vets/programs/userra/poster.