USERRA and the Family Medical Leave Act (FMLA)
USERRA requires that a person reemployed under its provisions be given credit for any months he or she would have been employed but for the military service in determining eligibility for FMLA leave. A person reemployed following military service should be given credit for the period of military service towards the months-of- employment eligibility requirement. Each month served performing military service counts as a month actively employed by DHS. For example, someone who has been employed by DHS for 9 months is ordered to active military service for 9 months after which he or she is reemployed. Upon reemployment, the person must be considered to have been employed by DHS for more than the required 12 months (9 months actually employed plus 9 months while serving in the military service) for purposes of FMLA eligibility. It should be noted that the 12 months of employment do not have to be consecutive to meet this FMLA requirement.
An employee returning after military service should be credited with the hours-of-service that would have been performed but for the period of military service in determining FMLA eligibility.
Accordingly, a person reemployed following military service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1250 hour requirement. In order to determine the hours that would have been worked during the period of military service, the employee's pre-service work schedule can generally be used for calculations. For example, an employee who works 40 hours per week returns to employment following 20 weeks of military service and requests leave under the FMLA. To determine the person's eligibility, the hours he or she would have worked during the period of military service (20 x 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1250-hour requirement is met.