Can You terminate an employee on military leave?

Can You Terminate an Employee on Military Leave?

As a employer, it’s crucial to understand the laws and regulations surrounding employee terminations, especially when it comes to employees who are serving on military leave. The Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Family and Medical Leave Act (FMLA) provide protections for employees who are called to serve in the military or experience family and medical emergencies.

Can You Terminate an Employee on Military Leave?

The short answer is: No. Under USERRA, employers are prohibited from terminating an employee who is on military leave for active duty or training, regardless of the reason. Employers are also required to reinstate employees who were on military leave upon their return, as long as they meet certain requirements (more on this later).

USERRA Protection

USERRA requires employers to provide eligible employees with a written assurance that they will not be terminated due to their military service. Employers must also provide written notification to employees of their reinstatement rights upon return from military leave.

Here are some key points to remember:

• Duration of Military Leave: An employer cannot terminate an employee because they are on military leave for more than 31 days.
• Reinstatement: After an employee returns from military leave, they have up to 90 days to notify their employer in writing of their intention to return to work.
• Job Restoration: An employer must restore the employee to their previous job, with the same status, including pay, benefits, and seniority.

Family and Medical Leave Act (FMLA) and Military Leave

The FMLA provides eligible employees with up to 12 weeks of unpaid leave in a 12-month period for certain family and medical reasons, including qualifying exigencies related to a spouse, son or daughter’s military service.

Here are some key points to remember:

• Qualifying Exigencies: FMLA applies to employees who are responsible for qualifying exigencies related to a spouse, son, daughter, or parent’s military service, including:

  • Short-notice deployment or active duty
  • Military caregiver leave
  • Military funeral honors leave

• Military Spouse Leave: Eligible employees may take up to 26 weeks of FMLA leave in a single 12-month period to care for a spouse who is critically injured or ill, as a result of their active military service.

Mitigating Circumstances

While USERRA and FMLA provide protection for employees on military leave, there may be certain circumstances where an employer may be able to terminate an employee. These circumstances may include:

• Material breach of employment contract: If an employee breaches a material term of their employment contract, such as an obligation to return to work after military leave, the employer may be able to terminate the employee.
• Willful disregard: If an employee engages in willful disregard of the employer’s interests or policy, the employer may be able to terminate the employee.

Best Practices

To avoid potential legal and compliance issues, employers should:

• Keep records: Maintain accurate and complete records of employee military service, including dates of deployment, leave, and notification of intent to return to work.
• Document employee notifications: Keep documentation of employee notifications regarding leave, including written assurance under USERRA and requests for FMLA leave.
• Consult legal counsel: If an employer has concerns about terminating an employee on military leave, it’s best to consult legal counsel to ensure compliance with relevant laws and regulations.

Conclusion

Terminating an employee on military leave can have serious legal and compliance implications. Under USERRA and FMLA, employers are prohibited from terminating employees who are on military leave, unless they can demonstrate a material breach of employment contract or willful disregard. By understanding these laws and regulations, employers can ensure compliance and minimize potential legal risks.

Here is a summary table highlighting key points:

Remember, it’s crucial to consult legal counsel to ensure compliance with relevant laws and regulations when dealing with employee terminations on military leave.