New FMLA Rules Increase Time Off To Help Care For Veteran, Active-Duty Relatives
Postal employees will have more opportunities to take time off work to help family members who are military service members or veterans under new rules mandated by the 2010 National Defense Authorization Act.
The law, signed late last year by President Obama, allows employees to take up to 12 weeks of paid or unpaid leave per year under the Family and Medical Leave Act (FMLA) to help a family member who is on active duty or is being called up for active duty to a foreign country.
The new rules also enable employees to take up to 26 weeks of paid or unpaid leave per year under FMLA to care for family members who are veterans and need medical treatment, recuperation, or therapy for a serious injury or illness incurred in or aggravated by service in the line of duty on active duty.
Previously, employees could only take time off to help injured or ill family members who were active-duty military. To qualify, the veteran must have been a member of the military, National Guard, or Reserves during the five years preceding the treatment, recuperation or therapy.
Click here for further information about the Family and Medical Leave Act. (internal USPS link)
also see New Law Expands FMLA for Military Families
Postal Worker Fired For Excessive Use Of Military Leave Wins Partial Court Victory
Richard Erickson, a distribution Clerk was removed from his position at Fort Myers Processing and Distribution Center (Fort Myers, Florida). Erickson filed an MSPB appeal under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), asserting that he was improperly removed because of his military service and requesting that he be reinstated. The MSPB administrative judge (AJ) found that USPS violated USERRA by removing Erickson from his position but nevertheless denied him any relief. The AJ’s decision was based on the determination that Erickson subsequently waived his reemployment rights under USERRA by abandoning his civilian employment in favor of a military career.
According to the court records:
Mr. Erickson was employed by the Postal Service from 1988 until he was removed from his position in 2000. Throughout his employment with the agency, Mr. Erickson served in the Army National Guard Reserve. During that period, he was absent from his position with the Postal Service for lengthy periods of time while he was on active duty with the National Guard. Between 1991 and 1995, he was absent from his Postal Service position for a total of more than 22 months, and between 1996 and the date of his removal in 2000, he worked at the Postal Service for no more than four days. In January 2000, a labor relations specialist from the Postal Service contacted Mr. Erickson by telephone to determine whether he intended to return to his position with the agency or continue serving in the military. Mr. Erickson responded that he would not report back to work with the agency until he completed his current tour of duty in September 2001. In the course of that conversation, he stated that he preferred military service to working for the Postal Service.
Shortly thereafter, the Postal Service issued a notice proposing to remove Mr. Erickson from his position because of excessive use of military leave. The notice stated that in the course of his tenure with the agency, he had been on military leave for more than five years, excluding weekend drills and annual training. Because USERRA contains a five-year limit on the amount of military leave an employee may use while retaining employment rights, the agency advised Mr. Erickson that he was no longer entitled to occupy his position with the Postal Service. Mr. Erickson did not respond to the notice of proposed removal, and on March 31, 2000, the agency issued a final decision removing him from his position because of his absence. Mr. Erickson subsequently re-enlisted with the National Guard and remained on active military duty until December 31, 2005.
On September 28, 2006, nine months after the end of his military duty, Mr. Erickson filed an appeal with the Merit Systems Protection Board alleging that the agency had violated his USERRA rights by removing him from his position based on his military service. The administrative judge who was assigned to the appeal found that at the time of Mr. Erickson’s removal in 2000, his cumulative military leave did not exceed the five-year cap set by USERRA, because some of Mr. Erickson’s military service was statutorily exempt from the five-year service limit. See 38 U.S.C. § 4312(c). The administrative judge further concluded that the agency had violated USERRA’s nondiscrimination provision, 38 U.S.C. § 4311, when it removed Mr. Erickson for excessive use of military leave: “Because appellant was removed solely because of his military service, the evidence of record supports a finding that appellant’s military service was ‘a substantial factor’ in appellant’s termination from the Postal Service.” However, the administrative judge concluded that Mr. Erickson had waived his USERRA rights by abandoning his civilian career in favor of one in the military. The administrative judge therefore issued an initial decision denying Mr. Erickson’s USERRA appeal.
The United States Court of Appeals for the Federal Circuit affirmed in part and reversed in part MSPB’s decision. The court ruled that ..
1) MSPB erred in rejecting Erickson’s claim of unlawful discrimination based on his military service as his cumulative military absence at the time of his removal did not exceed five years and thus he retained employment rights under USERRA;
2) MSPB was correct in its ruling that Erickson failed to make a timely application for reemployment under USERRA. Therefore The Postal Service did not unlawfully refuse to reemploy him after his service; and
3) the court remanded case so that MSPB can address whether Erickson waived his USERRA rights by abandoning his civilian career to pursue one in the military.
See full decision issued 7/15/09 (PDF) Erickson vs USPS
USPS: Postal Employees Not Entitled To Additional Military Paid Leave
The letter below is USPS’ response to an inquiry by NALC on Postal Employees entitlement to 22 days additional paid Military Leave in support of contingency operations:
Fired Postal Worker Featured in Push to Expand Reservist Job Rights
The plight of two reservists who appear to have lost their civilian jobs as a result of military service will be featured at a Thursday press conference to rally support for a bill that would increase penalties for employers who violate federal employment and re-employments rights laws for military personnel.
One of the men, Army National Guard Staff Sgt. Eric Grenesko, was laid off from a job as a service manager for a Pittsburgh company while he was away on military training. The second man, Richard Erickson of Fort Myers, Fla., was fired from the U.S. Postal Service for what his termination letter says was excessive use of military leave.
In Grenesko’s case, his termination notice made no clear link made to his military service, although he suspects that was the case. He received the layoff notice while away at a military training course for noncommissioned officers.
Erikson’s military service clearly was an issue. A National Guard Special Forces sergeant major who already had served one tour in Afghanistan, Erikson was terminated because postal officials calculated he had missed more than five years of work since 1991 because of his military service and was about to be mobilized for another 18 months.
Both men would be helped by the Reservists Access to Justice Act, sponsored by Rep. Artur Davis, D-Ala., which would strengthen the rights of service members to seek legal remedies if they believe their employment and re-employment rights were violated.
Those rights to hold onto a job are granted by the Uniformed Services Employment and Re-employment Rights Act, known as USERRA, which has a major loophole because some private-sector and government employers require workers to seek arbitration instead of suing over employment issues.
Under Davis’ bill, HR 3993, mandatory arbitration would not apply to USERRA cases and employers could face up to $20,000 in damages if they are found by a court to have violated a service member’s rights.
The bill, which Davis hopes to get passed through the House of Representatives this year, faces some jurisdictional issues. The House Veterans’ Affairs Committee has ultimate jurisdiction over USERRA, but the House Judiciary Committee on which Davis serves is responsible for some of the legal issues.
House leaders hope to work out an agreement for quick passage, Davis aides said.
source: Army Times