Sometimes, employees really need to take a leave of absence from work. The reason might be because of family responsibilities, medical needs, or obligations due to uniformed service. There are laws that let you do that.
Family Medical Leave Act
The federal Family Medical Leave Act allows qualified employees to take up to 12 weeks of leave in a 12-month period. The FMLA guarantees the employee benefits during the leave and job protection when they return. Employees may take leave under the FMLA for the birth or adoption of a child, a serious health condition, or an immediate family member’s serious health condition. The leave can be taken intermittently, meaning a few days or hours at a time, or in the form of a reduced schedule.
The FMLA applies to employers with 50 or more employees within 75 miles of the employee’s worksite. For an employee to qualify for leave, the employee must have worked for the employer for at least 12 months and 1,250 hours. When possible, the employee must ask for the leave 30-days in advance and provide sufficient medical information. While the FMLA applies to the federal government as well as to private employers, the rules implementing the FMLA are slightly different for federal employees.
Some state and local laws may expand family medical leave coverage to additional categories of employees and employers outside of the FMLA.
A service member’s active duty can put stresses on family members. The FMLA helps by allowing family members to take leave for several active service situations, such as short-notice deployment, military events and related activities, parental care, childcare and school events, counseling, and time-off when the service member is on R&R.The FMLA also gives protections to close family when a service member is called to active duty. Family members may be entitled to 26 weeks to care for a service member who suffers a service-connected illness or injury. The service member must have left uniformed service under honorable conditions and the injury must have happened within the 5-years prior to the leave start date.
Finally, the FMLA also prohibits an employer from retaliating against an employee for taking FMLA leave and from interfering with an employee’s exercise of rights under the FMLA. There are different avenues for enforcement of FMLA violations depending on whether you are a federal or private sector employee.
Uniformed Service Members
Members of the U.S. military services face challenges when they are called to active duty. The USERRA and FMLA give our uniformed service members, and their families, job protections to make it easier to serve and return from service.
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) protects past and current uniformed service members from unfair employment actions by their civilian employers because of their military service.
USERRA prohibits discrimination on the basis of a past, present, or future service obligation in cases of:
- Initial employment
- Reemployment
- Retention in employment
- Promotion
- Any benefit of employment
USERRA also prohibits an employer from retaliating against an individual for exercising or enforcing rights under USERRA or for assisting in an USERRA investigation.
An employer must re-employ a service member after a period of active duty service if:
- The service member was required to be absent from a civilian job on account of service in the uniformed services;
- The service member gave advance notice to the employer that he or she was leaving the job for service in the uniformed services (unless advance notice was not possible due to military necessity or was impossible or unreasonable);
- The cumulative period of military service with that employer did not exceed five years;
- The service member was not released from service under dishonorable or punitive conditions; and
- The service member timely reported back to the civilian job or submitted an application for reemployment (with some exceptions).
The uniformed service members covered by USERRA include:
- Guard and Reserve military personnel
- Active components of the Armed Forces
- The National Disaster Medical System
- The Commissioned Corps of the Public Health Service
The employers covered by USERRA include:
- Private employers in the U.S.
- Public and government employers in the U.S.
- Foreign employers conducting business in the U.S.
- U.S. companies operating in foreign countries unless compliance would violate the law of the foreign country where the workplace is located
If you believe your USERRA rights have been violated, you can file a formal complaint with the U.S. Department of Labor, Veterans Employment & Training Service (“DOL-VETS”). From there, DOL-VETS will investigate your complaint and attempt to resolve it. If DOL-VETS resolution efforts are unsuccessful, you can continue to pursue your complaint under one of two paths:
- For complaints against a federal executive agency:
- You may request that the U.S. Office of Special Counsel pursue your matter on your behalf.
- If the request is unsuccessful, then you may file an action with the Merit Systems Protection Board (“MSPB”).
- For complaints against a state, local, or private employer:
- You may request that the U.S. Department of Justice pursue the claim on your behalf;
- If the request is unsuccessful, then you may file an action in court.
If you are considering filing a USERRA action, you should contact us for an initial consultation to discuss your matter. Our attorneys will provide you with an analysis of your particular situation and counsel you on the pros and cons of your options. We are committed to ensuring that your USERRA rights are protected.
District of Columbia Leave Laws
The D.C. Family Medical Leave Act (“DCFMLA”) is broader than its federal counter-part. The DCFMLA law allows up to 16 weeks of family leave and 16 weeks of medical leave within a 24-month period and applies to employers with just 20 or more employees. To qualify for DCFMLA leave, you have to have worked at least 1,000 hours for the employer during the 12 months prior to your leave request.
DC law also provides up to 24 hours of leave for parents or guardians to attend their child’s school-related activities and up to 5 days paid jury duty.