Employer reminder: Mandatory "military leave" includes short notice leave for "funeral honors duty"
Posted on 05/31/2016 at 12:00 AM by Russell Samson
“The Secretary of Defense shall ensure that, upon request, a funeral honors detail is provided for the funeral of any veteran . . .” 10 U.S.C § 1491.
The statute continues that a funeral honors detail “must be composed of at least two members of the armed services (other than members in a retired status), at least one of whom shall be a member of the armed force of which the veteran was a member.” The statute prescribes the minimum ceremony that is to be “performed” (the statute’s word) at the funeral: “the folding of a United States flag and presentation of the flag to the veteran’s family and the playing of Taps.” (The latter may be recorded.) The Department of Defense has established standardized language for the flag presentation:
On behalf of the President of the United States, (the United States Army; the United States Marine Corps; the United States Navy; or the United States Air Force), and a grateful Nation, please accept this flag as a symbol of our appreciation for your loved one's honorable and faithful service.
In locations like Iowa where there are many smaller communities geographically distant from military units/installations, meeting the obligation to provide at least two active members of the armed services may be difficult. Federal law provides that members of reserve components, “may be ordered to funeral honors duty, with the consent of the member, to prepare for or perform funeral honors functions at the funeral of a veteran.”
While the statute says, “with the consent of a member,” as an employer you CANNOT interfere with your employees on whether or not the individual employee will give his or her consent. And while Congress has determined that a funeral honors detail should be statutorily required for any honorably discharged veteran, and Congress has determined that one who is ordered to “perform” (again, that is what the statute calls it) in a funeral honors detail is entitled to the protections provided by federal law for “military leave” generally, I suggest that when one considers the sacrifices that veterans made, one should not begrudge the absence of employees from work to provide those final honors.
Given the general practice in this country of a short time between death and the funeral, it is reasonable to anticipate that you, the employer, will receive very little advance notice of an “order” given to an employee to perform funeral honors duty. While the aspirational goal is that requests for such a detail will be made at least 48 hours in advance, a request won’t be denied based on a failure of 48 hours' notice. Regardless of how much notice an employer receives that one or more of its employees have been “ordered” (even with the employee’s consent) to funeral honors duty, that absence is USERRA-protected. The employee must be given the time off work needed to comply with the order.
Several years ago, Iowa established the right of veterans to take Veterans Day off work (without pay, and with advance notification to the employer). We discussed that law here and here. How many veterans in your employ know of the right to request a “funeral honors detail?” I became an Eagle Scout more than a half-century ago, but am instilled with “Be Prepared.” Be proactive: Tell all your employees of this right, so that those employees who are entitled to it (or who are related to someone who is entitled to it) can have a discussion today as to what their desires may be when the time comes.
The veteran who desires such honors could also assure today that the paperwork that might be required at the time the request is made following death (Form DD 214) is readily available. One can request military service records on line at http://www.archives.gov/veterans/military-service-records.
“Thank you. We appreciate your honorable and faithful service.”
The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.
Categories: Russ Samson, Employment & Labor Law
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