Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation. The leave may be taken intermittent or or a reduced leave schedule at the discretion of the employee. Paid leave is available at the discretion of the employer. Otherwise, the leave is unpaid. The employee must provide notice of the need for such leave "as is reasonable and practicable." An employer may require that leave be supported by a certification of entitlement to such leave. A copy of the notice, call, or order is considered sufficient certification. An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits. It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law. It is also illegal to discriminate against someone for opposing unlawful practices. The law would be enforced consistent with USERRA's current structure.
Comment: The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision. As such, whether the provision survives the House and Senate Conference Committee is anyone's guess. Stay tuned!