Continue benefits status during military leave
Always count military leave as time worked. Simply pretend the worker is present and earning leave and other benefits. That principle applies to both your attendance policies and your FMLA practices.
Recent case: Jesus worked at a critical position in a cheese-processing plant, relieving other line workers for breaks. He joined the military and was absent for several months for basic and advanced military training. Before taking military leave, Jesus was close to losing his job because he had racked up lots of poor-attendance points under the company’s no-fault attendance plan.
Shortly after returning to work, Jesus was sent home for violating the attendance policy when an absence put him over the limit. He was reinstated with pay about a week later after persuading HR that, under the Uniformed Services Employment and Reemployment Rights Act (USERRA), his military leave should have been counted as hours worked. Since poor-attendance points drop off when employees don’t miss work, he reasoned that his points should have disappeared during his leave.
Then Jesus asked for FMLA leave to bond with his newborn child. HR rejected his claim, informing him that he hadn’t worked enough hours in the past year to hit the 1,250-hour threshold for eligibility.
He then hired an attorney, who persuaded the employer that military leave hours should be counted toward the 1,250 hours. Jesus got the leave, albeit six months after his child was born. He sued.
The company argued that because it fixed both problems, Jesus hadn’t been harmed.
The court agreed as to his reinstatement under USERRA, but not on the baby-bonding leave. It reasoned that making someone hire an attorney and threaten a lawsuit was an adverse employment action. (Maya v. Leprino Foods, No. 1:12-CV-1479, ED CA, 2014)
