United States: Veterans Day: Going Beyond Giving A Day Off

The tradition of annually recognizing the courage and contribution of our veterans dates back to November 11, 1919, the first anniversary of the end of World War I. November 11th became a national holiday in 1938; employers in both the private and public sectors continue to search for ways to thank veterans for their service and sacrifices. As Veterans Day approaches, employers are reminded that some states support giving veterans the day off, while others allow other specialized leave time for military service. Federal law provides protections for employees who take leave for military service or because a relative is involved in military service. In addition, many states have enacted laws that provide a hiring preference for veterans and their spouses. Here is a brief overview of these laws.

Veterans Day

Several states—including Iowa, Massachusetts, New Hampshire, and Oregon—require that employers give veterans the day off on November 11. In each of these jurisdictions, the employee seeking leave must provide reasonable advance notice. Generally, the time off is unpaid, but the employer may elect to pay the employee. In Massachusetts, however, employers with 50 or more employees must grant paid leave to a veteran on Veterans Day if the employee intends to participate in activities related to the holiday. For its part, Tennessee encourages employers to provide paid time off to veterans who otherwise would be scheduled to work on Veterans Day, but providing time off is not mandatory.

Federal Leave Laws Involving Military Service

Beyond potentially getting a day off for Veterans Day, employees may be entitled to time off due to service in the military or because a relative is involved in the military.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) creates obligations for all employers, public and private, to provide unpaid leave for military service.¹ Employees may elect to use—or not use—vacation or annual paid time off during a USERRA leave and an employer may not interfere with this right. USERRA also provides employees with health care coverage for the first 30 days of a military leave and then provides for continuation coverage that the employee may elect. It further requires employers to reinstate employees following a USERRA leave, provided certain criteria are met by the employee.² Finally, employers are prohibited from retaliating or discriminating against employees due to past, present, or future military obligations or because of participation in an investigation regarding a claimed violation of USERRA.³

The Family and Medical Leave Act (FMLA) provides two types of leave related to military service. First, the FMLA authorizes qualified exigency leave, which arises when a covered employee's spouse, child, or parent is called to active duty. The law permits the employee to take up to 12 weeks of unpaid leave for a qualifying exigency when a spouse, son, daughter, or parent of the employee is called to active duty. A broad range of events and activities are considered qualifying exigencies, including short-notice deployment, child care and school activities, financial and legal arrangements, rest and recuperation, post-deployment activities, counseling, and military events and related activities. The FMLA also provides military caregiver leave for employees who need to care for a covered service member with a service-related injury or illness. All of these are defined by the FMLA.

State Military Leave Laws

Some states provide additional leave benefits for employees who are veterans and active military members. For example, Illinois has adopted a state version of USERRA that codifies certain requirements not specifically included in USERRA, but which have been the subject of court interpretations of USERRA over the years.⁴ Louisiana provides specific protection for veterans who take time off work for medical appointments necessary to maintain veteran's benefits.⁵ Maine recently enacted a similar law requiring employers to allow a veteran to take leave to attend a scheduled appointment at a medical facility operated by the U.S. Department of Veterans Affairs.⁶ Maine also allows leave time before deployment for those called into active duty and provides family medical leave to employees if a spouse, domestic partner, sibling or child dies, or becomes seriously injured or ill due to military service.⁷

At least 13 states permit leave for employees with immediate family members or spouses who are involved in military service and are injured, ill, or killed during service. While a few require paid time off, others require employers to allow qualifying employees to take unpaid leave to care for or spend time with family members in or after active duty.⁸

Some of these new laws will not take effect for at least a year. For example, California enacted a broad paid family military leave law—effective January 1, 2021—that expands the scope of the family temporary disability insurance program to provide time off for qualifying exigency leave related to the covered active duty of the qualified employee's spouse, domestic partner, child, or parent in the armed forces.⁹ Massachusetts also has a generous leave law that includes paid family and medical leave for employees to care for a family member who is a covered service member or to manage a qualifying exigency arising out of a family member's active duty service, beginning January 1, 2021.¹⁰ Connecticut recently enacted a measure to provide eligible employees who have family members in the military with paid family leave time and benefits, with benefits available starting January 1, 2022.¹¹

Hiring Preferences

Another avenue where veterans may benefit from recognition and support in employment is through hiring preferences.¹² Employers governed by the Office of Federal Contract Compliance Programs (OFCCP) must comply with the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA).¹³ VEVRAA includes certain hiring benchmarks and generally applies to employers granted federal contracts or subcontracts in the amount of $150,000 or more.¹⁴ The annual hiring benchmark can be found from yearly Bureau of Labor Statistics data, or employers can choose to calculate a custom benchmark using a five-factor method provided in OFCCP regulations.

In addition, more than 35 states have passed laws permitting private employers to give veterans a preference in employment decisions, many of which have been expanded in recent years.¹⁵ Generally, these statutes allow private employers to adopt policies that give preference to military veterans in hiring, promotion, and retention decisions. Newer laws and amendments have often expanded the preference to military spouses when the veteran has been injured or killed during military service. Many of the statutes clarify that an employer's decision to exercise the preference should not constitute unlawful discrimination under other existing state employment laws, including fair employment practices laws. The statutes also generally mandate that employers that choose to enact a preference policy apply it consistently across hiring situations.

As companies address leave time and hiring policies, employers may want to consider whether to voluntarily implement a specific policy addressing a veterans' preference consistent with applicable state law. As with the adoption of most employment policies, employers wishing to do so should consult with counsel, and ensure the policy is uniformly applied.

Footnotes

1 38 U.S.C. § 4301 et seq.

2 38 U.S.C. § 4312(h).

3 38 U.S.C. § 4311(a).

4 820 Ill. Comp. Stat. § 151/10(A)-(C). See Jennifer Schilling and Kyle Mueller, Sharp Curve Ahead! An Employer's Roadmap to Recent Legislative Developments in Illinois, Littler Insight (Sept. 27, 2019).

5 La. Rev. Stat. § 23:331.

6 Me. Rev. Stat. tit. 26, § 637.

7 Me. Rev. Stat. tit. 26, §§ 843, 844.

8 The states with unpaid family leave for military service members include Connecticut (paid leave will become a requirement beginning January 1, 2022), Illinois, Indiana, Minnesota, Maine, Massachusetts, Minnesota, Nebraska, New York, Ohio, Oregon, Rhode Island, and Washington.

9 Cal. Mil. & Vet. Code § 395.10(a).

10 Mass. Gen. Laws ch. 175M, § 2(a)(1).

11 Conn. Gen. Stat. § 31-51kk(1) (as amended by Connecticut SB 1 (2019)).

12 A federal recognition program, Honoring Investments in Recruiting and Employing Military Veterans Act, known as HIREVets, was launched in 2017 to recognize employers' efforts to recruit and hire veterans. Employers must apply for the program and show hiring statistics to be listed as recipients of the award.

13 38 U.S.C. § 4212.

14 For more information, see David Goldstein, Hiring Benchmark for Veteran Affirmative Action Plans Lowered to 5.9%, Littler ASAP (Mar. 27, 2019).

15 Such laws are on the books in Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Missouri, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming. California's law does not expressly authorize a veterans preference but provides that anti-discrimination statutes should not prevent an employer from exercising a preference where otherwise permitted. A recent bill (AB 160) proposed during California's 2019 legislative session to add an explicit voluntary veterans hiring preference failed to pass.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.