Employing Members of the Minnesota National Guard

January 27, 2015

While the Ebola outbreak has mostly faded from American headlines, until this past Saturday, hundreds of Minnesotans were prepared to deploy to Liberia to support U.S. efforts to contain the virus. The Ebola outbreak in West Africa was first reported in March 2014, and the current epidemic has now killed more than all other known Ebola outbreaks combined. Defense Secretary Chuck Hagel ordered nearly 700 Minnesota National Guard members from the Rosemount-based 34th Red Bull Infantry Division to be mobilized to support humanitarian relief in Liberia this spring, but on Saturday, the troops were informed that their deployment has been called off. Even though the soldiers are no longer heading to Liberia, with Minnesota National Guard units in sixty-two communities statewide, this is a good reminder for businesses that employ National Guard members or their family members to brush up on the many federal and state laws regarding military leave.

First, Minnesota employers must allow for an unpaid leave of absence for up to four years for an employee who is a member of the National Guard and is engaged in active service in time of emergency. Although the statute does not define “time of emergency,” it’s likely that a situation like the Ebola outbreak in Liberia, with a death count due to the virus near 3,500 in Liberia alone, would qualify as an emergency. Upon reinstatement, the employee shall have the same rights with respect to seniority, vacation, insurance, sick leave, and other benefits as if he or she was actually employed during the time of leave, and is entitled to reinstatement in the same or a comparable position.

Additionally, federal law protects employees’ rights to workplace leave for service in the National Guard. The Uniformed Service Employment and Reemployment Rights Act (USERRA) affords National Guard members the right to reemployment if they ensure the employer receives advance notice of service, there is five years or less of cumulative service while with that particular employer, they return to work or apply for reemployment in a timely manner after conclusion of service, and they have not been discharged under disqualifying or less than honorable conditions. Also under the USERRA, employers may not discriminate or retaliate against anyone who is a member of or applies to be a member of the National Guard. This includes that an employer may not deny initial employment, reemployment, retention in employment, promotion, or any other benefit of employment based on this status.

In addition to state and federal laws protecting National Guard members, there are also certain circumstances in which family members of National Guard members are afforded the right to unpaid leave. For example, both the federal Family Medical Leave Act (FMLA) as well as Minnesota law generally requires that employers grant a certain amount of unpaid leave to an immediate family member of a National Guard member in order to attend a send-off or homecoming ceremony. Other circumstances include attending family training or readiness events sponsored or conducted by the military, and events held as part of official military reintegration programs. The employee must provide reasonable notice to the employer when requesting this time off, and the employer must provide a reasonable amount of nonpaid time off for the employee. Minnesota law limits the required unpaid leave to two consecutive days or six days in a calendar year, and the employer cannot compel the employee to use accumulated but unused vacation for these events. Additionally, the FMLA also affords protection for leave for family members who need to care for a National Guard member who incurred or aggravated a serious injury or illness while on duty.

Employers should not only stay updated on leave laws, but also consider the workplace implications of employees or their family members returning from services, like the Ebola outbreak, that may carry risks or consequences to the workplace upon return. It is always best for an employer to have policies and procedures in place prior to any potential workplace problems, rather than to play catch-up after a problem arises.

This information is general in nature and should not be construed as tax or legal advice.