With the United States sending military to NATO countries in Europe and otherwise increasing preparedness for uncertain times ahead, you may find some employees dealing with a “qualifying exigency.”  A qualifying exigency leave is when the employee or the employee’s spouse, child of any age, or parent is deployed to a foreign country or international waters for active military service.  Some employers may not have a written, pre-established policy to follow when these leaves arise. Here are a few important reminders on how benefits are impacted.

First, it’s helpful to remember that several federal laws and agencies provide employers and employees guidance in how military leaves are to be addressed.  While these leaves may not be paid time off under federal law, they still come with job and benefit protections.

  • The ESGR, or Employer Support of the Guard and Reserve, is a program of the Department of Defense established in 1972 to promote cooperation between civilian employers and Reserve Component Service members (the National Guard and Reserve). They are a great resource to employers looking for ways to support their employees in these times.
  • USERRA, or the Uniformed Services Employment and Reemployment Rights Act of 1994, applies to employers of any size. When the employee is assigned to a deployment lasting longer than 30 days, it provides:
    • COBRA-like benefit continuation for up to 24 months, and
    • Job protection for 5 years, including reinstatement of benefits and FMLA
  • While USERRA applies when an employee is deployed, FMLA, or the Family and Medical Leave Act of 1993, applies when the employee’s spouse, child of any age, or parent is deployed.
    • Employer locations with 50 or more employees in a 75-mile radius provide FMLA once an employee has worked 12 months and earned at least 1,250 hours of service.
    • FMLA provides up to 12 weeks of job-protected leave with benefit protections for a qualifying exigency.
    • This can be extended to last up to a combined total of 26 weeks for military caregiver leave due to the family member’s serious illness or injury. However, the 12-month period for this begins the date military caregiver leave begins, so it’s not necessarily aligned with the 12-month period used by the employer for all other FMLA leaves.
    • Unlike USERRA which allows the employer to cease contributions, the benefit protections under FMLA require the employer maintain its contributions.
      • However, the employer can require the employee to pay his/her share of premiums monthly to maintain benefits, subject to a 30-day grace period, provided such a requirement is communicated in advance, such as in an employee handbook. If benefits lapse for failure to pay premium, there’s no COBRA, but:
        • If the employee later terminates or reduces to part-time, then they’ll have access to COBRA despite the lapse in coverage; or
        • If the employee resumes full-time work during FMLA protection, benefits must resume no later than the first of the month after returning full-time.
      • While many employers do adopt rules requiring payment during the leave, many other employers offer a chance to repay when the employee returns to full-time work instead of forcing a coverage lapse. Just note there are a couple of reasons the employee might not have to repay such a debt if they don’t ultimately return to full-time work.
    • Employers might consider providing this guide to their employees: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FMLA_Military_Guide_ENGLISH.pdf

Second, employers want to be careful to only ask for information or certifications they are authorized to request.

  • For example, while an employee is strongly encouraged to provide 30 days advance notice of needing USERRA leave, advance notice is not technically required. Additionally, notice can be provided by someone else (such as an authorized military personnel on behalf of the employee), notice doesn’t have to be in writing (can be a phone call or conversation), and the employer cannot require documentation to take the protected leave. However, the employer can require documentation upon a request for reinstatement after 30 days.
  • Conversely, FMLA always authorizes requesting up-front certification within 15 calendar days to justify a leave, and can require advance notice and following normal absence call-in procedures as much as practicable.

Finally, it’s important to review any state laws as well as the employer’s own leave policies to ensure all protections are provided.  In the event an adverse employment or benefit determination seems likely, employers are strongly encouraged to proactively consult with legal counsel.


Written by: KC Rippstein


IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.