USERRA vs. FMLA: Understanding Your Rights When Called to Duty

When service members are called away for training or active duty, understanding the protections afforded by USERRA (Uniformed Services Employment and Reemployment Rights Act) and the FMLA (Family and Medical Leave Act) can mean the difference between maintaining a career and facing an unexpected job loss. Both laws grant job-protected leave for qualifying circumstances, but they serve distinct purposes and apply to different groups of employees.

In this article, we will explain how USERRA and FMLA differ and overlap, and what steps reservists and National Guard members in Jackson, Mississippi, should take to preserve their employment rights. For personalized assistance on employment rights, Espy Law will help provide expert guidance and support.

USERRA and FMLA Explained

USERRA is a federal statute enacted to protect service members from discrimination and to guarantee reemployment rights after military service. Under USERRA, employers must promptly reinstate returning employees to their previous position, or a comparable job with equivalent seniority, status, and pay, after qualifying military duty. Key provisions of USERRA include:

• Coverage of all uniformed services, including reservists, National Guard members, and the commissioned corps of the Public Health Service.
• Reemployment rights after up to five years of cumulative service, subject to certain exceptions.
• Prohibition on discrimination based on military affiliation or obligation.
• Continuation of health insurance benefits for up to 24 months during service.

In contrast, the FMLA provides eligible employees of covered employers with up to twelve weeks of unpaid, job-protected leave in a twelve-month period for family or medical reasons, including qualifying exigencies related to a family member’s military service. Core features of the FMLA are:

• Eligibility for employees who have worked at least 1,250 hours over the prior twelve months for an employer with fifty or more employees within seventy-five miles.
• Job-protected leave for the birth or adoption of a child, severe health conditions of the employee or an immediate family member, and particular military family needs.
• Maintenance of group health insurance on the same terms as if the employee had not taken leave.
• Restoration to the same or an equivalent position upon return from leave.

While both laws secure job protection and benefit continuation, USERRA focuses on service-related absences, whereas the FMLA addresses personal or family health and caregiving scenarios.

What Should You Know About These Leaves?

Employees who serve in the military or National Guard often qualify for both USERRA and the FMLA in overlapping situations. For instance, when a member of the National Guard is called to active duty to respond to a natural disaster, they may be eligible for USERRA reemployment protection and for FMLA exigency leave related to a family member’s covered active-duty status. Important considerations include:

Notice Requirements

Under USERRA, employees should provide advance written or verbal notice to their employer and submit military orders or other documentation of service. For FMLA, employees must follow the employer’s usual procedures for requesting medical leave and provide certification by a health care provider when required.

Documentation

Keep copies of all military orders, personnel evaluation reports, or deployment notices. For FMLA, maintain medical certifications, leave request forms, and any related correspondence with the employer.

Concurrent Use of Leave

Employers may require that an employee use accrued paid leave, such as vacation or personal time, concurrently with FMLA leave, but cannot force paid leave to count against USERRA protections.

Seniority and Benefits

Under USERRA, returning service members accrue seniority and benefits as if they had remained continuously employed. Similarly, FMLA requires continuation of group health coverage under the same terms.

Reservists and National Guard members should ensure they understand both the scope and limits of these laws and prepare to assert their rights proactively. When in doubt, consult an employment attorney for clarity.

Common Considerations on USERRA and FMLA

Understanding typical scenarios helps illustrate how USERRA and FMLA interact in practice:

Military Training vs. Medical Family Leave

USERRA covers a reservist attending weekend drills or annual training. Should that same individual need to leave to care for a spouse with a serious health condition, FMLA would apply, assuming the employer meets coverage and eligibility criteria.

Deployment vs. Personal Medical Leave

Deployment on federal orders triggers USERRA protection. If a family member is injured or falls ill, the service member or another eligible employee may use FMLA to provide care.

Disciplinary Actions

Employers are prohibited from disciplining or terminating an employee because of their military service under USERRA. Under FMLA, any adverse employment action taken because of leave taken is unlawful.

Intermittent Leave:

FMLA permits intermittent or reduced-schedule leave for medical reasons or qualifying exigencies related to military service. USERRA, however, applies to discrete periods of service and does not provide a continuous leave entitlement.

By recognizing these everyday situations, employees can better assert their rights and avoid unlawful treatment.

Special Considerations When Called for Duty

When actual duty calls, reservists and National Guard members face unique challenges, key steps to protect your employment include:

1. Provide Prompt Notification: As soon as orders are received, inform the employer in writing. Supplying a copy of the orders supports the application of USERRA protections.
2. Understand Reemployment Deadlines: Under USERRA, the time to return to work depends on the length of service. For absence:
   • Less than thirty-one days: return by the first whole regularly scheduled work period on the first full calendar day after discharge.
   • Thirty-one to 180 days: application within fourteen days of discharge.
   • More than 180 days: application within ninety days of discharge.
3. Maintain Communication: Even while on leave, stay in touch regarding benefits, benefit elections, or life insurance matters, ensuring smooth benefit continuation.
4. Coordinate Benefits: Enroll in employer health plans and continue premium payments during military service if required to maintain coverage. Upon returning, health coverage must be reinstated without waiting periods or exclusions for preexisting conditions.
5. Request FMLA Exigency Leave: If a service member’s family requires care due to the service member’s call to active duty, another eligible employee may take FMLA exigency leave for activities such as making financial or legal arrangements, attending military events, or addressing child care needs.

These proactive measures safeguard both civilian career prospects and family stability in times of service.

How Seeking Guidance from a Trusted Employment Attorney Helps?

Dealing with military obligations and health-related absences can be stressful, and enlisting a knowledgeable employment attorney ensures that your rights under USERRA and the FMLA remain fully protected. They will carefully review your employer’s policies, advise on the correct timing and documentation for notices, and determine your eligibility while identifying any overlapping benefits under both statutes.

Should your rights be violated, an employment attorney can represent you in administrative proceedings before the Department of Labor or in federal court. Whenever possible, they will negotiate with employers to resolve disputes informally, sparing you protracted litigation. Whether you need assistance drafting notices, reviewing military orders, or advocating on your behalf, lawyers provide the clarity and peace of mind you deserve.

Your Legal Guidance When Called For Duty

Chris Espy is a trusted employment lawyer in Jackson, Mississippi, dedicated to securing your right to uninterrupted employment and restoring your benefits.

Call now to schedule a free confidential phone consultation and start protecting your employment rights.