Military Leave

We have an employee returning from military service in Iraq. She has been deployed for over a year and is returning to work in two weeks. we are not clear on whether the employee is entitled to any vacation and/or sick leave she would have accrued if she had remained at work (i.e., not taken military leave). Is she entitled to a whole year's worth of vacation and sick leave?


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  • HI Chrissy:

    We had a similar situation recently and here is what our lawyer told us:

     Computing the vacation entitlement of returning military service personnel has been the subject of confusing interpretations by the courts (Foster v. Dravo, 431 US 581 (1977)). Generally, if the vacation entitlement is based on seniority, then military service should be counted; if the vacation entitlement is based on compensation for work performed, military service may not necessarily be counted (e.g., the "rate" of accrual may change, if based on seniority, but the employee does not accrue vacation while on leave). In case there is any doubt, employers should obtain professional advice.


  • I agree. It's important to remember that you can't penalize EEs for their active military time. So if it is seniority based - they would get the time as if they had never left. If it's based off hours worked, you may also have to treat it like they worked the last year. I saw a Webcast on the SHRM page yesterday about USERRA yesterday about FMLA and you even if an EE hadn't worked 1250 hours in the last 12 months due to their mil service - they would still be entitled to FMLA is it met all the other requirements. You want to check that the same doesn't apply in this case. There are a lot of good USERRA resources out there (BLR, SHRM, etc) since there is such a large portion of our population in active service right now. Good luck!
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