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Sep 13, 2017

Protecting Those Who Serve

Category: Employment

Don't Forget About Military Leave for Servicemembers and Their Families
There are various leaves that members of the military and their families are entitled to under both state and federal law. Maine law differs in a few ways from federal requirements, so it's important to be up on the distinctions and all the laws at play. Here's a helpful guide to protecting those who serve our country and their family members.
  • Death or serious injury of military member: Under the Maine Family medical leave law and the federal family medical leave act ("FMLA"), an employee can take leave for the death or serious health condition of a spouse, domestic partner, sibling, parent or child if the individual dies or incurs a serious health condition while on active duty with the National Guard or the United States Armed Forces.
  • Under the Maine FMLA, these are the requirements:
    • The employer has more that 15 employees;
    • The employee has worked for the employer for at least 12 months; and
    • The employee is entitled to take up to 10 weeks of leave in a two year period.
  • Under the federal FMLA, these are the requirements:
    • The employer has more than 50 employees;
    • The employee has worked for at least 1,250 hours; and
    • The employee is entitled to take up to 12 weeks of leave in a one year period.
  • Family military leave: In addition to leave an employee can take under Maine FMLA for the death or serious injury of a military family member, Maine law also allows for up to 15 days of family military leave if a spouse, domestic partner or child is called to military service where combat is expected to take place and the service is expected to last longer than 180 days. Click here to read the law. Here are some additional requirements under the Maine law:
    • The employee must have worked at least 1,250 hours during the 12-month period immediately preceding the leave; and
    • The employee must have worked at least 12 months for the employer.
    • The employee is NOT required to take the 15 days consecutively, but must take the leave during the 15-day period immediately preceding deployment, during deployment (if military leave is granted), or during the 15-day period immediately following your spouse's, domestic partner's or child's return from service.
Family military leave is unpaid leave, but an employee may elect to use accrued paid time off or vacation time during any part of the leave. Additionally, an employer may require that an employee using this type of leave give "reasonable notice" of needing to take the 15 days. An employer can also require that the employee provide certification from the proper military authority verifying the need for leave or the military status of the covered service member.
The federal FMLA also allows an employee to take up to 12 weeks of unpaid, job protected leave during any 12-month period for what’s called a “qualifying exigency” that may arise when the employee’s spouse, son, daughter, or parent is on covered active duty or has been notified of an impending call or order to covered active duty. “Covered active duty” under the FMLA means:
  • For members of the Regular Armed Forces, duty during deployment of the member with the Armed Forces to a foreign country; or
  • For members of the Reserve components of the Armed Forces (members of the National Guard and Reserves), duty during deployment of the member with the Armed Forces to a foreign country (which includes deployment in international waters) under a call or order to active duty in support of a contingency operation.
"Qualifying exigencies" for which an employee may take FMLA leave include things like:
  • Making alternative child care arrangements for a child of the deployed military member;
  • Attending certain military ceremonies and briefings; or
  • Making financial or legal arrangements to address the military member's absence. Click HERE for more information on "Qualifying Exigency Leave" under the FMLA.
  • Military leave for employees called to duty for the National Guard or the Reserves: Under Maine law and federal law (the Uniformed Services Employment and Reemployment Rights Act ("USERRA") any member of the National Guard or the Reserves is entitled to a military leave of absence. Here's what the law requires: 

    • The employer must provide (at no additional cost to the employee), the employee's health, dental and life insurance benefits for at least the first 30 days of the military duty;
    • After the expiration of the first 30 days of military leave, the employer must give the employee the option of continuing the health, dental and life insurance benefits in effect at the employee's own expense by paying the insurance premium at the same rates as paid by the employer;
    • An employee must give reasonable prior notice of needing this leave; and
    • If the employer requires, the employee must also provide confirmation of their military duties.
Once an employee returns from duty, reinstatement rights depend on the length of military service. This link shows exactly what's required.

Reinstatement - USERRA: Under USERRA, members of the armed services and its reserve components who perform duties must be reinstated to employment without loss of status or benefits and without any break in service, as long as the employee meets all of the requirements under the Act. These requirements include:

  • The employee provides notice as far in advance as is reasonable under the circumstances, including information about the approximate beginning and end dates of his/her service;
  • The employee may take up to a total of 5 years of cumulative leave for military service during the time of employment, unless an allowed exception applies; and
  • The employee meets the guidelines under USERRA for reapplying for work and returning to work after the leave.
There are some circumstances where the employer is not required to reemploy a person after military service, including the following:  
  • If the employer's circumstances have so changed as to make such reemployment impossible or unreasonable (if, for example, a reduction in force occurred during the person's absence that would have terminated that person's employment);
  • In the case of a person with a service-connected disability, if reemployment would impose an undue hardship on the employer;
  • The employment from which the person leaves is for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period;
  • Reasonable notice of the desire to return was not given, and the employer's established policies are violated by failure to give reasonable notice; or
  • The person's separation from service was dishonorable, based on bad conduct, or "other than honorable" conduct.
Reinstatement – Maine law: Under Maine law, any person returning from activeduty who is still qualified to perform the duties of their position must be reinstated at the same pay, seniority, benefits and status and receive any other incidences of advantages of employmentas if the person had remained continuously employed.
  • The law also says that the employer may, at its discretion, grant military leaveunder this law with or without pay.
  • The employer may not require any person returning from a period of military service to report back to work if an employee on military duty has been out for certain time periods. It’s all laid out pretty specifically in the law. CLICK HERE to make sure to have it all down before you make a decision. 
It’s important to get it right when it comes to protecting the rights of these employees. For more information, contact Skelton Taintor & Abbott. Service members and their families are the backbone of our nation - and often - our workplaces. It's important to get it right when it comes to protecting the rights of these employees. 

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters.  You can contact us at 207.784.3200.  SkeltonTaintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.