Is an employer required to allow for intermittent time off due to military service? Can an employer require employees to provide proof of the need for intermittent time off?
Since this leave relates to the employee’s military service, we will limit this response to the requirements of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and comparable state law.
However, please also note that the federal Family and Medical Leave Act also provides for protected leave for families of military personnel caring for injured servicemembers and/or for managing qualifying exigencies related to military service.
USERRA, which covers all public and private employers, provides job protection to individuals engaged in uniformed services. Protected services include intermittent activities such as weekend drills, summer encampment, and similar types of training duty.
Employers have the right to receive advance notice of service unless military necessity or other conditions make it impossible for the employee to provide notice. The employee, or an appropriate officer of the uniformed service in which his or her service is to be performed, must notify the employer that the employee is to perform military service.
Employers may not insist on knowing exactly when the employee will return to work, or even if the employee intends to do so. However, the employee can be asked to furnish the employer with the approximate beginning and concluding dates of his or her service.
It is important to note that an employee who provides notice of the need military leave is not asking for the employer’s permission to take leave – if the employee is qualified under USERRA, then he or she is entitled to take the necessary leave, including on an intermittent basis, and to be reemployed at the end of the term of service. However, the employer is permitted to bring its concerns over the timing, frequency, or duration of an employee’s service to the attention of the appropriate military authority.
Military authorities are directed to provide assistance to an employer in addressing related employment issues and such authorities are required to consider requests from employers of National Guard and reserve members to adjust scheduled absences from civilian employment in order to perform service.
Additionally, the employer is obliged to reschedule the worker, if possible, to avoid conflicts between work and reserve or Guard training so the employee may work a full week.