• DOL Says Military Leave Counts Toward FMLA Requirements
  • April 30, 2003 | Author: John C. Lowrie
  • Law Firm: Ford & Harrison LLP - Denver Office
  • As employees who were called up for active military duty in the wake of the September 11 tragedies are returning to work, many employers are facing questions regarding these employees' rights under various employment-related laws. Consider, for example, an employee who returns to work after nine months of military duty and immediately requests leave under the Family and Medical Leave Act (FMLA) for a serious health condition. Assuming that all other requirements under the FMLA are met, is the employee entitled to this leave since he or she has been on military duty for the previous nine months? Under the analysis used in a non-binding opinion letter issued by the Department of Labor (DOL), the employee would be eligible for FMLA leave. The DOL opinion letter states that the time the employee spent on military duty should count toward the FMLA's eligibility requirements.

    As most employers are aware, the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides that veterans and members of the National Guard and Reserves are entitled to reemployment following their return from qualifying military leave. USERRA also prohibits discrimination against any person on the basis of that person's past military service, current military obligations, or intent to join the military.

    The FMLA gives eligible employees of a covered employer the right to take up to twelve weeks of unpaid leave for the birth and care of a newborn, adoption or foster care, or a serious health condition of the employee or certain family members. The FMLA defines the criteria for an employee to be considered an eligible employee. Two of these criteria are affected by an employee's absence due to military leave: the employee must have been employed by the employer for at least twelve months; and the employee must have worked at least 1250 hours for the employer during the twelve-month period preceding the start of the FMLA leave.

    Under USERRA, employees returning from a military leave of absence are entitled to all benefits they would have obtained if they had been continuously employed, except certain benefits that are considered a form of short-term compensation, such as accrued paid vacation. The DOL takes the position that if a service member had been continuously employed, one benefit to which he or she might have been entitled is FMLA leave. Eligibility depends on whether the service member would have meet the eligibility requirements if the person had not been on military leave.

    The DOL states that when calculating whether a person has been employed by the employer for twelve months, each month the service member spent on military leave counts as a month of employment. The DOL provides the following example: Someone who has been employed by an employer for nine months is ordered to active military service for nine months, after which he or she returns to work. Upon reemployment, the person is considered to have been employed for more than twelve months (the nine months before the military leave and the nine months of military leave).

    The DOL applies similar reasoning to the 1250-hour requirement and states that an employee returning to work after military service should be credited with the hours of service that would have been performed but for the period of military service. Thus, a person reemployed following military service has the hours that would have been worked for the employer added to the hours actually worked during the previous twelve-month period to meet the 1250-hour requirement. The DOL states that the employee's pre-service work schedule can usually be used to determine the hours that would have been worked if the employee had not been on military leave. The DOL gives the following example: An employee who works forty hours per week for the employer returns to employment following twenty weeks of military service and requests leave under the FMLA. To determine the person's eligibility, the hours he or she would have worked during the period of military service (20 x 40 = 800) must be added to the hours actually worked during the twelve-month period prior to the start of the leave to determine if the 1250-hour requirement is met. The DOL does not address how an employee who works a varied schedule each week should be treated.

    The DOL's memorandum can be accessed here. While this memorandum does not have the force and effect of law, it reflects the DOL's position that employees returning from military leave should be give maximum job and benefit protection. Employers faced with a question regarding whether an employee returning from military leave is entitled to FMLA leave should contact experienced employment counsel.