As a military kid, I saw the high price service members and their families pay during deployments and upon returning home from combat.? I knew soldiers who suffered serious injuries and family members who needed time off from work to help them recover.? Now, as a non-profit lawyer who advises employees about their rights, I am in a position to advise these soldiers and their families about the protections they are entitled to in the workplace.? These areas of law, described below, are particularly important as troops are returning to work after serving in Afghanistan and Iraq.
Family and Medical Leave Act (FMLA)
To provide care for injured service members and veterans and to ease the transition for service members and their families from military life to civilian life, the FMLA offers two types of leave: exigency leave and military caregiver leave.? Exigency leave provides eligible employees up to 12 weeks of leave for situations arising out of a service member?s deployment, service, injury, reintegration, and other events that place some extra burden on the employee?s time or attention.? For example, a family member can take leave to provide urgent childcare or make alternative childcare arrangements for the child of a military member when required by the military member?s active duty or call to active duty. This leave only applies to family members of service members in the National Guard or Reserves.
Military caregiver leave allows eligible employees to take up to 26 weeks of leave to care for a covered military member or veteran with a serious injury or illness. A covered service member is any member or veteran of the armed services, including the National Guard or Reserves.? It can be taken by a spouse, child, parent, or next of kin of a covered service member who requires care.? A serious illness or injury is defined as an illness or injury sustained by the member in the line of duty, while on active duty, that makes the service member medically unfit to perform duties of his rank.
Uniformed Services Employment and Re-Employment Rights Act (USERRA)
When troops return home from deployments, many hope to return to their position in the civilian workforce.? For numerous service members, the USERRA extends reemployment rights to persons who have been absent from a position of employment because of ?service in the uniformed services.?? To be eligible, a member must have been discharged under honorable conditions, served for less than five years cumulatively, and provided advance notice of the leave and an intent to return.? The deadline for submitting a request for reinstatement depends on several circumstances, but if the service member sustained injury while on military duty, she has up to two additional years to seek reinstatement.
While on military duty, a service member?s employer must continue her health insurance for 30 days, and military service must be considered service with the employer for vesting and benefit accrual purposes.? When the service member returns, the employer is required to place her in the position she would have occupied with reasonable certainty if she had remained continuously employed, including any pay raises and promotions.? Finally, employers cannot discharge the employee except for cause for a period of time after the date of reemployment.
The Americans with Disabilities Act (ADA), and the ADA Amendments Act of 2008 (ADAAA)
The ADAAA specifically mandates that episodic impairments or those in remission, such as post-traumatic stress disorder (PTSD) ? a disability experienced by a number of returning veterans, are qualifying disabilities if they cause substantial limitations when active.? This clarification facilitates members? ability to obtain protection against discrimination on the basis of their disability, reasonable accommodations, and other protections under the ADA.
California Law and Veterans
With 32 military bases and thousands of service members and veterans employed within the state, California recognizes the need to protect service members and their families and has enacted laws to do so.? Under the California Military and Veterans Code Sections 394 and 395, employers cannot terminate employees or make adverse employment decisions against service members for performing their ordered military duties.? The California Family Military Leave Act provides employees who are spouses of service members with up to ten days of unpaid leave when the service member is home temporarily from the deployment.
Transitioning back to life outside of the combat zone, especially for soldiers with serious injuries or illnesses, is a mission that no service member should have to go through without the support of her family and civilian employer.? The laws described above ensure that our service members and veterans can return home and feel supported.
Tamika Butler is the John and Terry Levin Fellow at Legal Aid Society-Employment Law Center and would like to thank law clerk Katherine Zhao for invaluable help with this blog post.
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