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Military Leave Requirements Under USERRA | Free Military Leave Requirements Policy

1. What does USERRA require?
2. What employers and employees are covered?
3. What does “service in the uniformed services” include?
4. Do employees have to provide advance notice of their need for leave?
5. How much time off can employees take and still be guaranteed reemployment?
6. Do we have to pay employees on military leave?
7. How are health care benefits covered during military leave?
8. How are pension benefits treated during military leave?
9. How are vacations and other seniority-based benefits treated?
10. Does the employee have to provide notice of his intent to return to work?
11. What are our reemployment obligations?
12. What is the “escalator principle”?
13. Are there any exceptions to the reemployment obligation?
14. What other protections do returning veterans have?
15. Do states have similar requirements?

As an employer, you need to know what your obligations are to employees that take military leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Our editors have analyzed the USERRA statute and court cases to answer 15 common questions concerning USERRA requirements.

1. What does USERRA require?

USERRA, codified at 38 U.S.C. §4301 et seq., provides enhanced leave rights and job protections for employees absent for military duty. It prohibits discrimination in employment and retaliation against any person who was, is, or applies to be a member of a “uniformed service,” or who performs or has an obligation to perform “service in a uniformed service.”  (For discussion on Reinstatement, see below.)

USERRA further provides that you must grant a leave of absence for up to five years to any person who is absent from a job because of service in the uniformed services. (See question 5, below.) In addition, you ordinarily must reinstate the returning veteran to the position he would have held if his employment had not been interrupted by military service.

2. What employers and employees are covered?

The USERRA applies to all employers, regardless of size, and to every employee, regardless of length of service or part-time status (with the exception of workers employed for brief, nonrecurrent periods).

3. What does “service in the uniformed services” include?

This service includes voluntary and involuntary active duty, active duty for training, initial active duty for training, inactive duty training, and full-time National Guard duty. It also includes any absence needed for an examination to determine whether a person is fit to perform military duty. The “uniformed services” are the Army, Navy, Air Force, Marine Corps, Coast Guard, and their reserves; the Army and Air National Guards, including periods of training; the Public Health Service commissioned corps; and other categories designated by the President in times of emergency.

4. Do employees have to provide advance notice of their need for leave?

Yes. Employees must provide employers advance written or oral notice of their need for military leave. USERRA does not specify how much notice must be given. Notice is not required if military necessity prevents the giving of the notice or it would be unreasonable or impossible to give the notice.

5. How much time off can employees take and still be guaranteed reemployment?

Reemployment rights apply only to veterans whose cumulative period of uniformed service does not exceed five years while employed by the same employer. However, in computing the cumulative five-year period, you may not count time spent in National Guard and reservist training.

Further, you may not count involuntary extensions of service that result from the following:

-- an order to remain on active duty because of a war or national emergency (unless the extension is for training);

-- the veteran’s inability to obtain release orders before expiration of the five-year period through no fault of his own;

-- an obligation to complete an initial period of service that is beyond five years;

-- an order to fulfill additional training requirements certified in writing by the Secretary of Defense;

-- a call into federal service as a member of the National Guard;

-- or an order to active duty, as determined by the Secretary of Defense, in support of certain operational or critical missions.

6. Do we have to pay employees on military leave?

No. USERRA only requires unpaid time off. The military generally pays its activated members. Employers often provide pay for at least a limited period of time, in recognition of the duty the employees are fulfilling and because military pay is often much less than the employee’s normal wages. Many employers also allow employees to use any accrued vacation during military leave, although you may not require employees to use vacation. Note, however, that the Fair Labor Standards Act requires that exempt employees who take military leave and work for the employer in the same week must be paid for the entire week in order to maintain the exempt status.

7. How are health care benefits covered during military leave?

USERRA requires employers to allow any employee on a military leave to elect and pay for continuation of coverage for himself and dependents under any health care plan provided in connection with employment. This coverage ends after 18 months or, if earlier, on the date the veteran fails to return or apply for return to employment as required. (See Return to work requirements.) The person electing this coverage may be required to pay up to 102% of the full premium associated with coverage for other employees. If the period of service is less than 31 days, the employer must continue health insurance as if the person is actively employed, and the person may be required to pay only the regular employee share of the premium.

If the coverage is terminated while the employee is on a military leave (either because the employee elects not to continue the coverage, because the period of service exceeds 18 months, or for any other reason), the employee and his dependents may not be subject to waiting periods or preexisting condition exclusions upon reinstatement.

8. How are pension benefits treated during military leave?

USERRA requires employers to treat the period of military leave as service with the employer for purposes of vesting and the accrual of benefits. Further, the period of military leave may not be treated as a break in service under the pension plan. On reemployment of the veteran, the employer must make any employer contributions to the pension plan that would have been required on behalf of the returning employee had he continued working for the employer during the period of service. Similarly, the returning veteran must be allowed to make up any employee contributions or elective deferrals he would have been eligible to make during his period of service.

9. How are vacations and other seniority-based benefits treated?

Employees returning from military leave are entitled to any benefits determined by seniority that they had when their leave began and also those benefits which would have accrued had they remained continuously employed. Thus, if an employer’s vacation policy is based on seniority, the employer must count the years of military leave as if they were years of actual work to determine how many weeks of vacation the returning veteran would then receive.

However, the employee does not have to be allowed to accrue vacation while on leave, unless other employees on leave are allowed to do so. In addition, employers must treat employees on military leave the same as other employees on a leave of absence with respect to benefits not determined by seniority.

Reinstatement under USERRA

10. Does the employee have to provide notice of his intent to return to work?

Yes. On completion of the period of military service, the returning veteran must notify the pre-service employer that he intends to return to employment. The length of time that the veteran has to contact the employer depends on the amount of time spent in service, as follows:

-- Service of 30 days or less. The returning veteran must report to the employer on the first full regularly scheduled work period on the first full calendar day following completion of the service, plus eight hours. If it is impossible or unreasonable for the veteran to report within that period through no fault of his own, he must report as soon as possible. This reporting period also applies to an employee who is absent from work for an examination to determine his fitness for military service.

-- Service of 31 to 180 days. The veteran must apply for reemployment no later than 14 days after military service ends, or, if it is impossible or unreasonable for the veteran to report within that period through no fault of his own, on the next calendar day on which it is possible.

-- Service of more than 180 days. The returning veteran must apply for reemployment within 90 days of the end of the military service.

-- Service-incurred or aggravated injury. If the returning veteran is hospitalized for, or convalescing from, an illness or injury that was incurred in or aggravated by the period of service, the above reporting deadlines may be extended for up to two years for any period of recovery.

11. What are our reemployment obligations?

USERRA requires that any veteran who receives a certificate showing satisfactory completion of military service must be restored to his previous employment. The type of position to which the veteran must be reinstated depends on the period of service and on the veteran’s abilities at the time of reinstatement. The following time frames apply:

-- Service of 90 days or less. The veteran must be reemployed in the position he would have held if he had continued in employment without interruption for military service, as long as he is qualified for that position. If the veteran would have been promoted if he had continued in employment but cannot be qualified for that new position after reasonable efforts by the employer, he may be employed in the position he held when military service began.

-- Service of 91 days or more. The veteran must be reemployed in the position he would have held except for the interruption for military service, or in a position of like seniority, status, and pay, if qualified for that position. If the veteran would have been promoted if he had continued in employment but cannot be qualified for either that new position or an equivalent one despite the employer’s reasonable efforts, he must be reemployed in the position he held when the period of service began or in a position of like seniority, status, and pay.

-- Veterans who cannot be qualified for the job. If the veteran cannot be qualified for the job he would have held or the position he formerly held after the employer’s reasonable efforts, and his inability to qualify is not related to a service-incurred or aggravated disability, he must be reemployed in any position of lower status and pay for which he is qualified, but with full seniority.

A disabled veteran whose disability was incurred or aggravated by military service and who cannot perform the job he would have held even after reasonable accommodation by the employer must be reemployed in: (1) any other position of equivalent seniority, status, and pay for which he is qualified or could become qualified through the employer’s reasonable efforts; or (2) in the nearest approximation to an equivalent position consistent with the veteran’s circumstances.

Note that USERRA requires that returning veterans be “promptly reemployed.” What is considered “prompt” generally depends on the circumstances of the case and how long the employee has been on military leave.

12. What is the “escalator principle”?

In many cases, the position the veteran would have held had employment not been interrupted by the period of military service will be the same as the position held when the period of service began. When there would have been a change, however, the “escalator principle” requires that the veteran receive any change in position or benefits to which he would have been entitled had he remained continuously employed.

For example, the returning employee must be granted seniority for the leave period. Similarly, the veteran must receive all other “perquisites of seniority,” such as seniority-tied increases in vacation and sick-day accrual rates, pay raises based on longevity, and promotions based on longevity or length of service the veteran was reasonably certain to have achieved.

Also, if a veteran is laid off while on military leave, and would have received severance pay had he been actively employed at the time of the layoff, he is entitled to that severance pay on his return. Moreover, if the veteran was laid off and on a recall list at the time he entered military service, he must be returned to the recall list on completion of his service.

13. Are there any exceptions to the reemployment obligation?

USERRA specifies certain limited circumstances under which an employer is relieved of its obligation to reemploy veterans returning from military service. The burden is on the employer to prove that one of these exceptions applies. These circumstances include:

-- Change in employer’s circumstances. If reemployment is “unreasonable or impossible” because the employer’s circumstances have changed, the employer may deny reinstatement. For example, if the employee’s job has been eliminated in a reduction-in-force, reinstatement is not required. However, an employer does not satisfy this standard simply because the position has been filled or no opening exists.

-- Disabled veteran’s employment is an undue hardship. Reinstatement may be denied if the employment of a veteran with a service-incurred or aggravated disability would cause an undue hardship to the employer after reasonable efforts to accommodate the disability.

-- Dishonorable discharge. If an employee is separated from uniformed service with a dishonorable or bad conduct discharge, his rights to reemployment and other protections end.

14. What other protections do returning veterans have?

USERRA also protects returning veterans from discharge without cause for a period of time after reemployment. If the returning veteran’s military service lasted between 31 and 180 days, the veteran may not be terminated without cause for 180 days after the date of reemployment. If the veteran’s period of military service was more than 180 days, this protection applies for one year after reemployment. Veterans with less than 31 days of military service do not have protection against discharge without cause, but like other returning veterans, they are protected from discrimination based on military service or a continuing service obligation.

15. Do states have similar requirements?

A number of states have laws protecting employees who are members of the uniformed services or who take time off for military leave. Generally, the state laws are not as comprehensive as the federal USERRA. For example, California prohibits discrimination in employment against members of the armed forces but does not provide reemployment rights following military service. New York provides job and benefits protection only for public employees who take a leave of absence for military duty. Employers are required to comply with both USERRA and any applicable state law.

USERRA Protects Those Who Serve

USERRA creates a number of HR administrative headaches. But, before you complain too loudly, remember that Congress historically has been very clear that military service deserves a favored status. USERRA is intended to encourage and protect those who are called up, or volunteer, to serve our country. So, in times of emergency or national threat like the present, the greater national need is rightly given special protected status and deserves our support.

 

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This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.

 
 
 



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