The FMLA/USERRA Overlap

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides reemployment rights for employees who plan to engage in, are engaged in, or have been engaged in military duty. It prohibits discrimination against any person on the basis of such military service. The law entitles employees to take leave from their civilian jobs to perform such service and return to their civilian jobs.

On the other hand, the FMLA provides job-protected leave for employees who have family members who are engaged in military service – it does not, however, provide for military leave for employees. Eligible employees may take up to 12 weeks of FMLA leave because of a qualifying exigency arising out of the fact that the employee’s family member is a covered military member on covered active duty. Eligible employees may also take up to 26 weeks of FMLA leave to care for a covered servicemember with a serious injury or illness if the employee is a family member of the servicemember.

The two laws do have some overlapping provisions. USERRA requires that service members who conclude their service and who are reemployed receive all employment benefits they would have obtained if they had been continuously employed, with a few exceptions. If a military service member had been continuously employed, one such benefit to which he or she may have been entitled is FMLA leave. The service member’s FMLA eligibility will depend upon whether he or she would have met the eligibility requirements had his or her employment not have been interrupted by military service.

Employees reemployed under USERRA are to be given credit for the period of military service toward the FMLA months- and hours-of-employment eligibility requirements. Each month served in the military counts as a month actively employed toward FMLA eligibility. To determine the hours that would have been worked during the military service, you should use the employee’s pre-military service work schedule. These hours are to be credited toward the 1,250 hours worked eligibility criteria for FMLA eligibility.