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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.
[Creating HR Policies or Employee Handbook?]
1. What does USERRA
require?
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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. |
Personnel
Policy Service, Inc.
