FOR RELEASE:  August 8, 2002

EVANS WELCOMES DEPARTMENT OF LABOR ACTIONS TO PROTECT RESERVISTS’ AND NATIONAL GUARD MEMBERS’ FAMILY AND MEDICAL LEAVE RIGHTS 

Washington, DC – Congressman Lane Evans (D-IL), Ranking Democratic Member of the House Veterans Affairs Committee, expressed strong approval of recent Department of Labor (DOL) actions to protect the rights of returning Reservists and National Guard members under the Family and Medical Leave Act (FMLA). 

After urging from Evans, DOL recently issued a memorandum that Reservists and National Guard members returning from military service to their civilian employment be considered eligible for FMLA leave.  The DOL memorandum was sent to both field and headquarters staff, including the Veterans’ Employment and Training Service and the Wage and Hour Division.  “This is a step in the right direction,” observed Evans, “our men and women who serve in the Reserves and National Guard are playing an ever-increasing role in our nation’s defense.  Upon their return from military service they deserve full protection provided by employment and labor laws, including family and medical leave.”  DOL’s memorandum on FMLA leave for returning Reservists and Guard members is based on its interpretation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides, among other protections, certain reemployment rights to service members returning to their civilian employment. 

The FMLA provides “eligible employees” up to 12 weeks of unpaid leave (paid leave if accrued) during any 12-month period for purposes of childbirth, adoption or foster care, or serious health conditions of the employee or certain other family members.  To be eligible for such leave, the FMLA requires that an employee work for a “covered employer” for at least 12 months, and have accumulated at least 1,250 work hours for that employer within the preceding 12-month period of the requested leave.  A possible legal issue arises for returning Reservists and Guard members when they seek leave under the FMLA, but have not accumulated the required 1,250 work hours within the preceding 12-month period because of their military service.  “By strictly reading the language of the FMLA, these returning service members are effectively barred from eligibility because of their military service” observed Evans.  “Penalizing returning service members would be wrong,” said Evans.  The DOL memorandum, issued July 22, 2002, seeks to rectify the apparent gap in FMLA coverage by interpreting the USERRA to entitle returning service members to all employment benefits they would have obtained, had they been continuously employed.  Specifically, the DOL memorandum makes clear that the months and hours that the employee would have worked, but for his or her military service, should be combined with the months employed and the hours actually worked to meet the 12-month and the 1,250 hours of employment required by the FMLA.  “My staff is reviewing DOL’s legal analysis and exploring other possible avenues to fix this problem” said Evans, “DOL has not always aggressively investigated nor enforced laws pertaining to veterans, so these recent actions are timely and welcomed, but will be monitored.”  

Evans, also a senior Democratic member of the House Armed Services Committee, wanted FMLA guidance issued by DOL for the many uniformed service members who were called-up after the September 11, 2001, national emergency, who will soon be completing their deployment and returning to civilian employment.  Some service members upon their return to civilian employment or soon thereafter, may request leave to attend to sick or injured family members or care for their newborns.  Based on such probable events, Evans anticipates increased FMLA questions and possible complaints related to veterans’ employment and reemployment issues in general. 

The next step on this important matter is to work with the DOL to notify the public, specifically, employers and the returning service members.  Additionally, Evans’ staff will closely monitor this issue and DOL’s investigative and enforcement actions, as well as, explore alternative measures to remove any barriers faced by the service members in availing themselves of their employment and reemployment rights.  A DOL issued “USERRA-FMLA Question and Answer” sheet and related press release can be viewed at http://www.dol.gov/vets/.  Additionally, interested person may contact DOL, toll-free, at 1-866-4-USA-DOL, with further questions.  

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