Veterans Day And a Reminder of Employers’ Military Leave Obligations

On November 11, 2022, the United States will celebrate Veterans Day, an annual holiday honoring military veterans of the United States Armed Forces. The date was first recognized as Armistice Day, a holiday to celebrate the end of World War I. In 1919, President Woodrow Wilson proclaimed November 11 as a day for “solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the council of nations.” Congress later recognized the date as a federal legal holiday in 1938, and, following World War II and the Korean War, the holiday was changed to “Veterans Day” to honor U.S. veterans of all wars.

Today, there are an estimated 19 million veterans living in the United States and approximately 1.3 million active duty personnel and more than 800,000 active reserve component members. The holiday also serves as a reminder of employment obligations to active duty and active reservists and their families. Here is an overview of several laws protecting the civilian employment of veterans and service members.

1. Uniformed Services Employment and Reemployment Rights Act

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides reemployment protections for veterans and service members who are involuntarily or voluntarily deployed for military service. The law further prohibits employers from discriminating or retaliating against individuals on the basis of their current, prior, or prospective military service. The law entitles service members who meet certain conditions to be restored to the same job and benefits they had prior to their military service. They further have a right to elect to continue their existing employer-based health plan coverage for themselves and their dependents for up to 24 months.

2. Veterans Benefit Improvement Act

The Veterans Benefit Improvement Act of 2004 amended USERRA to extend the period of continuation of health care coverage for deployed military members from 18 months to 24 months and created an obligation for employers to provide covered employees with notice of their rights, benefits, and obligations under USERRA. Specifically, the law required the U.S. Department of Labor (DOL) to provide a poster for employers to display in workplaces along with other required labor and employment law notices. Overall, USERRA has been amended over a dozen times since its initial passage to expand protections for employees in their civilian employment, including the elimination in 2008 of a statute of limitations for USERRA claims.

3. Family and Medical Leave Act

Military service can be burdensome on families in terms of handling childcare responsibilities when a spouse is deployed or caring for an injured service member. The Family and Medical Leave Act of 1993 (FMLA) requires covered employers to provide employees with job-protected leave for qualifying medical and family reasons. In 2008, the FMLA was amended to provide specific protections for military families. The Military Family Leave Provisions under the FMLA entitles a covered employee whose spouse, parent, or child is deployed to take up to a total of 12 weeks of unpaid leave in a 12-month period for qualifying exigencies, such as arranging day care for the military member’s children. The FMLA further entitles the spouse, parent, child, or next-of-kin of a covered service member to take up to 26 weeks of unpaid leave during a single 12-month period to care for an injured service member.

Key Takeaways

Federal law provides certain employment and reemployment protections for members of the uniformed services and permits leave for family members who may need to handle issues due to a deployed or injured family member. Veterans Day serves as a reminder that employers may want to review their military leave and benefits policies to ensure compliance with these federal laws.

Ogletree Deakins will continue to monitor and report on developments with USERRA and military leave requirements and will post updates to the firm’s Leaves of Absence blog. Important information for employers is also available via the firm’s webinar and podcast programs.