LEGAL GUIDE
Written by attorney Timothy George Pepper | Mar 28, 2011

Leaves of Absence and Military Service in Ohio

Active duty, National Guard, and Reserve deployments pose unique challenges to employees and employers. They can be lengthy and occasionally unpredictable, and they can impact family members as well as the deployed service member. After returning to civilian life, the service members may struggle with medical conditions that interfere with their jobs.

The increased tempo of military deployments since 9/11 created a need for clarity in this area of employment law. The rules are now well-established (at least in Ohio). The purpose of this blog post is not to try to summarize them all - they can be very complicated - but simply to serve as a starting point for analyzing these questions.

Three laws provide the basic protection for military-related leave in Ohio:

-- the federal Uniformed Services Employment and Reemployment Rights Act (commonly known as "USERRA"),

-- the federal Family and Medical Leave Act (commonly known as the "FMLA"), and

-- Ohio's Military Family Leave Act ("OMFLA").

Keep in mind that employees of federal, state, and local governments each have their own set of rules that can vary, and unionized employees working under collective bargaining agreements can also have additional protections.

For most private sector employees in Ohio, the only important laws are USERRA, FMLA, and OMFLA. USERRA protects the service member's employment rights. The FMLA protects the employment rights of the service member's family. The OMFLA increases the protections of the FMLA for Ohio citizens.

So, what basic protections do these laws provide? They are very complicated, and much depends on the individual circumstances of the employee and employer. Because these laws address different concerns and can overlap, the easiest way to approach them is to see how they apply in particular situations. The questions below are the easy ones - you'll probably need to consult an attorney for guidance in more complex situations.

1. What are a service member's basic rights to reemployment? Service members have the right to their civilian jobs back if they leave a job for military service, and all of the following conditions are met: -- the employee gave the employer advance notice of the absence; -- the employee has five years or less of total military service with that particular employer; -- the employee returns to work, or applies to return, in a timely manner after returning from military service; and -- the employee was not given a less than honorable discharge.

2. Is the service member's leave paid or unpaid? It's generally unpaid under USERRA, FMLA, and OMFLA. Government employees and certain union members may have some paid military leave.

3. What about the service member's employee benefits? Like COBRA health care continuation coverage, service members on a military leave can usually continue their health care coverage (and for their dependants, too) for up to 24 months if they pay the entire cost of the coverage.

4. When can a family member take leave related to a service member's deployment? This gets really complicated. It's a case-by-case issue. Generally speaking, if the family member's employer has more than 50 employees within a 75-mile radius of the family member's job site, then the FMLA provides two types of leave: (a) "exigency leave," which is a 12-week entitlement to deal with "exigencies" related to a call to active duty; and (b) "military caregiver leave," which is a 26-week entitlement to care for a seriously injured or ill service member. On top of that, the OMFLA gives qualifying family members up to 10 days or 80 hours, whichever is less, of general time off in order to prepare for a deployment or call to duty. If the employer has more than 50 employees total, but doesn't have that many employees within 75 miles of the employee's job site, then the FMLA does not apply but the OMFLA does. So, the "exigency leave" and "caregiver leave" are not available, but the OMFLA's 10-day leave is.

I hope this is a helpful start. The resources linked below are a good place to start digging into the details.

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