Leave Management, Policy, and Compliance

Coordinating FMLA with USERRA

In this article series, we’ll focus on the intersection of the Family and Medical Leave Act (FMLA) and how it affects many other laws, including the Americans with Disabilities Act (ADA), workers’ comp, and other state laws that apply to medical or disability leaves. Additionally, the FMLA may intersect with a variety of employer-provided leaves and policies, including those for short- or long-term disabilities. It does not supersede any provision of any state or local law that provides greater family or medical leave rights.

As a general rule, when the FMLA overlaps with other laws, the employer must follow the law that gives the employee the greatest benefits or is most favorable to the employee. In addition, if a collective bargaining agreement or your own policy gives employees greater benefits than the FMLA, then follow it as well. In the last installment, we looked at pregnancy and genetic discrimination in regard to the FMLA. Here, we’ll look at how to coordinate the FMLA with the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

While FMLA grants leave to employees who have a family member in the armed forces, USERRA grants leave to employees who are in the armed forces. USERRA resembles the FMLA in many ways. For example:

Both laws require employers to give certain employees a specified amount of unpaid leave. USERRA requires employers to grant up to 5 years of unpaid leave to employees for active military duty. By contrast, the FMLA entitles employees to 12 weeks of leave for a qualifying exigency and up to 26 weeks of military caregiver leave.

  • Similarly to the FMLA, employees who return from military duty are entitled—at a minimum—to be reinstated to their old job or an equivalent one.
  • The FMLA has similar benefits protections for employees who take FMLA leave as USERRA has for employees who take military leave.
  • Similarly to USERRA’s discrimination provisions, the FMLA prohibits employers from discharging or otherwise discriminating against “any individual”—not just employees—for opposing a violation of the FMLA.

On the other hand, there are a great many differences in the two laws. Apart from the obvious difference in the amount of leave required, two of the critical distinctions are that:

  • All employers are required to comply with USERRA regardless of how many (or how few) employees they have.
  • There is no eligibility requirement under USERRA. Employees are generally eligible for military leave and job reinstatement regardless of how long or how many hours they have worked for the employer.

Finally, note that when an employee returns to work after military leave that is protected under USERRA, you have to determine his eligibility for FMLA leave as if he was never gone. That means that you have to give him credit for time spent on military leave for both the 12-month and the 1,250 hour requirements for FMLA eligibility.

In the next installment, we’ll cover the coordination of FMLA leave as it applies to various state laws.