The Intersection Between the USERRA and the FMLA

By John Lowe

On September 28, 2001 we provided an overview of employers' rights and responsibilities under the Uniform Services and Employment and Re-Employment Rights Act (USERRA), which governs employers whose employees are called to military duty. (If you need a refresher on the USERRA, please see E-mployment Alert, issue 12.)

Employers who are subject to the Family Medical Leave Act (FMLA) should be aware that the Department of Labor has recently issued a Memorandum memorializing its position on the intersection of the USERRA and the FMLA. While the DOL's position is consistent with the goals of the USERRA, it could cause violations of the USERRA and the FMLA by unwary employers (i.e., those who don't receive Kegler Brown's E-mployment Alert).

Generally, an employee is eligible for FMLA leave after working for a covered employer for at least 12 months and at least 1,250 hours. The Memorandum states that the time a military reservist spends on active duty and away from employment should be counted toward the employee's eligibility for leave under the FMLA. Stated another way, if a recently hired employee is called away on military duty, the months and hours that employee would have worked must be counted toward FMLA eligibility upon the employee's return.