USERRA Military Leave
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides members of uniformed services certain protections. USERRA applies to all employers, regardless of size. Employees and prospective employees covered by USERRA are those who have served in and been honorably discharged from any of the uniformed armed services in the United States (including the U.S. Coast Guard, the reserves, or the National Guard), are currently serving in the military, or are enlisting in the military. A person’s entitlement to the protections of USERRA terminates upon a dishonorable or bad-conduct discharge.
USERRA prohibits employers from discriminating against employees or prospective employees because of past, current, or future military obligations. The ban is broad, covering most areas of employment, such as hiring, promotion, reemployment, termination, and benefits.
Entitles members of uniformed services to reemployment without loss of seniority, status, or pay for a certain period of time
Protects applicants and employees against discrimination because of their past, present, or future military obligations or their intent to serve
Requires employers to make reasonable efforts to retrain or upgrade skills to qualify returning employee
Extends health care and pension plan coverage during leave
Protection does not depend on the timing, frequency, duration or nature of service, voluntary or otherwise
Military service treated as leave of absence; returning employee entitled to seniority and other rights that would have accrued if employment had not been interrupted by service
Under USERRA, members of uniformed services returning from duty have an “unqualified” right to reemployment as long as the employee meets the following conditions:
1. Employee provides advance notice of service, where possible;
2. Service does not exceed five years (in almost all circumstances);
3. Employee must not have been released from service under dishonorable or other punitive conditions; and
4. The employee must timely report back to his/her employer.
Employee must have left employment in “other than a temporary position”.
Jobs must be held open for at least five years.
Employees who have served 30 days or less are protected if they report by the beginning of the first regularly scheduled work period after the end of a calendar day following completion of service (plus eight hours after time allowed for safe transportation from the place of service back to his/her residence). If reporting within that time period is impossible or unreasonable through no fault of the employee, s/he should report as soon as possible.
If employee has served less than 90 days, the employee must be placed in the position of employment in which s/he would have been employed if the continuous employment had not been interrupted by military service and if the individual is qualified to perform those duties.
If employee has served 91 or more days, employer must place returning veteran in a position of like seniority, status and pay or a position which the employee would have attained had s/he, with reasonable certainty, remained in continuous employment with the employer (“escalator position”).
Returning employee who is not qualified for his/her “escalator position” upon return (other than for a service-related disability) must be placed in the position held at the date of commencement of service in the military or in a position of like seniority, status, and pay.
Employees who serve between 31 to 180 days are protected if they submit an application for reemployment no later than 14 days after completion of service or as soon as possible if it is otherwise not feasible.
Employees who have served more than 180 days are protected if they submit an application for reemployment no later than 90 days after completion of service or as soon as possible if it is otherwise not feasible.
Employee reporting and application deadlines may be extended for up to two years for those who have been hospitalized or are convalescing.
When an employee has a disability caused by or aggravated during military service and is not qualified to hold the position of employment that s/he would have attained absent military service, the employer must place the employee in another position that is equivalent in seniority, status, and pay which the employee is qualified to perform. If the employer cannot find a position equivalent in seniority, status, and pay, the employee should be placed in a position that is the nearest approximation to his/her former position in terms of seniority, status, and pay.
Accrued Leave: Employees who leave for service can use any vacation, annual or other leaves with pay that had already accrued.
Protection Against Discharge: Reemployed employee who served for more than 180 days may not be discharged - except for cause - for one year.
Health Plans: USSERA is broader than COBRA because USERRA applies to all employers, unlike COBRA.
Upon return from duty, health insurance benefits should continue and be applied as if there had been no interruption (should be no lapse in coverage, waiting periods, or exclusions for pre-existing conditions).
If military service is for less than 31 days, the employer may not charge employees on military leave a premium any greater than that paid by other employees.
Employees performing military duty for more than 30 days may elect to continue employer-sponsored health care for up to 18 months but may be required to pay up to 102% of the full premium under the plan.
Pension Plans: For ERISA purposes, employees serving in the military are treated as continuous employees during their period of service.
In other words, an employee’s military service constitutes time with the employer or group of employers maintaining the plan for the purpose of determining benefits.
No break in employment service is permitted
No forfeit of benefits already accrued
No necessity to requalify for participation
Employers must make any contributions to pensions that would have been made if employee had not been absent for service
Employee must be allowed to make up missed deferrals or contributions (for contributory plans); employer must match any employee contributions, if applicable to employer’s plan, but does not need to credit employee with interest that would have been earned
Returning employee must be credited with time spent in military as time spent on job for purposes of computing pension benefits regardless of whether the plan is a defined benefit plan or a defined contribution plan.
Many states have their own laws that grant rights to state and/or municipal employees who are absent from their jobs due to military service. Therefore, both USERRA and any state law concerns must be considered by employers in dealing with employees who have served or will serve in
the uniformed armed services.
The U.S. Department of Labor’s has a toll-free Call Center to assist employers with questions about reemployment rights: 1-866-4-USA-DOL (TTY: 1-877-TTY-JOBS); see also, the National Committee for the Employer Support of the Guard and Reserve at www.esgr.com or call 1-800-336-4590.