USERRA PROTECTS EMPLOYEES CALLED FOR MILITARY SERVICE

The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301-4333, provides certain rights for employees called for military service (regular armed forces, reserves, National Guard, and Public Health Service). In light of recent events, some school employees will be required to report for duty for varying lengths of time. Below, in question and answer format, is some basic information about the rights those employees have under USERRA. Keep in mind that USERRA supersedes any state law, contract, agreement, policy, plan or practice that provides a lesser right or benefit, but yields to any state or local right or benefit greater than, or in addition to, USERRA provisions.

Is prior notice to the employer required for leave of absence for military duty?

Yes. Unless it is precluded by military necessity, or is otherwise impossible or unreasonable, advance notice must be provided either orally or in writing. USERRA does not spell out what constitutes timely notice. But failure to provide notice could result in denial of USERRA protections.

Can an employer require an employee to apply for military leave of absence or otherwise submit official documentation for approval of military leave of absence?

No. An employer may not require documentation for notification prior to military duty. An employer must permit a military leave of absence as long as the employee has not exceeded five years of cumulative services as provided under USERRA.

When may an employer require an employee to provide official, written military orders?

After periods of military leave of absence for more than 30 days, the employer has the right to request such documentation.

What if the employee cannot provide satisfactory documentation for military service in excess of 30 days?

The employer must promptly reinstate the employee pending receipt of documentation. The employer may contact the military unit if necessary.

Is there a time limit on the amount of military leave an employer must permit?

Yes. There is a five-year cumulative service limit on the amount of voluntary military leave an employee can use and still retain reemployment rights.

Certain kinds of service are exempt from this five-year limit.

Are there time limits for an employee to return to work after completing military duty?

Yes. The limit depends on the length of leave.

 After a weekend drill or other service from 1-30 days. An employee must return to work either at the beginning of the next regularly scheduled work day or during that portion of the next regularly scheduled shift that would fall eight hours after the end of a drill plus a reasonable amount of time to commute home.

 After service of 31-180 days. An employee must apply for reemployment no later than 14 days after completion of the individual’s service. If the 14th day falls on a day when the offices are closed, the time extends to the next business day.

 After service of 181 or more days. An employee must apply for reemployment no later than 90 days after completion of the individual’s service. If the 90th day falls on a day when the offices are closed, the time extends to the next business day.

The reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing because of a disability incurred or aggravated during military service.

To what job position must an employee be returned after a military leave of absence?

Except for persons with a disability incurred in or aggravated by military service, the position into which a person is reinstated is based on the length of a person’s military service.

1-90 days. An employee whose military service lasted 1-90 days must be promptly reemployed in:

a) the job the person would have held had the person remained continuously employed, so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer to qualify the person; or

b) the position of employment the person held on the date military service commenced only if the person is not qualified for the position described in

(a) even after reasonable efforts by the employer.

If the employee cannot be qualified for either (a) or (b), he should be placed in the position that most nearly approximates (a) or (b) and the duties of which the employee can perform.

91 or more days. Employers must promptly reemploy persons returning from military service of 91 or more days according to the same priorities established for service of 1-90 days except that the employer has the option of offering a position of like seniority status and pay to the job described in category (a) and (b) above.

If the employee cannot become qualified for either (a) or (b), the employer may reemploy the person in another position of lesser status and pay but that most nearly approximates the position in category (a) or (b).

Persons with disability incurred or aggravated while in military service. An employer must make reasonable efforts to accommodate an individual’s disability so that the person can perform the position he would have held if he had remained continuously employed. If despite these reasonable accommodation efforts the person is not qualified to assume to this position, the employer must employ him in a position of like seniority, status and pay for which he is qualified or could become qualified with reasonable efforts of the employer. If the employee does not become qualified in either situation, the person must be employed in a position that, consistent with the circumstances of that person’s case, most nearly approximates the position in terms of seniority, status and pay.

In any case, the employer is not required to reemploy a person if an employer’s circumstances have changed so much that reemployment would be impossible or unreasonable.

Must an employer pay an employee on military leave of absence?

No. Many employers offer differential pay or a specific number of paid military leave days. However, employees must, at their request, be permitted to use any vacation that had accrued before the beginning of military leave, instead of taking unpaid leave. Employees cannot be forced to use vacation time for military service.

Must an employer provide benefits to an employee on military leave of absence?

It depends on whether benefits are provided during other kinds of leaves of absence. A departing service member is entitled while she is away to participate in any rights and benefits not based on seniority that are available to employees on nonmilitary leaves of absence. If there are variations in rights and benefits for nonmilitary leaves of absences, the most favorable treatment must be accorded the service member. Service members may be required to pay the employee cost, if any, of any funded benefit to the extent that other employees on leave of absence would be required to pay.

What rules apply to health benefits?

Employers must provide for continuation of health coverage to persons on military leave even if the employer is not covered by COBRA. During the first 30 days of leave, the employee cannot be required to pay more than the normal employee share of any premium. If the person’s health coverage would terminate because of the absence due to military service, the person may elect to continue health plan coverage up to 18 months after the absence begins or for the period of service, whichever is shorter. The employee cannot be required to pay more than 102 percent of the full premium.

Do persons on military leave retain rights and benefits based on seniority?

Yes. Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with "reasonable certainty" had they remained continuously employed. A right or benefit is seniority-based if it is determined by or accrues with length of service.

What rules apply to pension/retirement plans?

 A reemployed person must be treated as not having incurred a break in service

 Military service must be considered service with an employer for vesting and benefit accrual purposes

 The employer is liable for funding any resulting obligation

 The reemployed person is entitled to any accrued benefits from employee contributions only to the extent that the person repays the employee contributions.

Do teachers continue to accrue time toward tenure eligibility while on military leave?

It depends on the terms of state or local law and/or policy. In many states tenure is not purely a right based on length of employment but also requires observation and evaluation of successful teaching, completion of teacher induction, and fulfillment of other conditions. Thus, arguably acquisition of tenure should not be considered a seniority-based benefit or right under USERRA. This would mean then that for purposes of determining tenure, school districts must treat teachers called for military duty in the same manner as it treats teachers on other comparable types of leave.

What other protections does USERRA provide for employees returning from military duty?

USERRA prohibits employers from discharging a reemployed person without cause for one year after the date of reemployment if the person’s military service was for 181 days or more. The person is protected from discharge for six months if his military duty lasted from 31-180 days. Persons whose service lasted 30 days or less are not protected from discharge without cause.

USERRA also prohibits discrimination in hiring, promotion, reemployment, termination and benefits because of past, current, or future military obligations.

How is USERRA enforced?

USERRA may be enforced by the Veterans Employment and Training Service (VETS) of the U.S. Department of Labor, the U.S. Attorney General, or through private court actions. For more information about USERRA, you may want to visit the Web sites below.

http://www.esgr.org

http://www.elaws.dol.gov/userra/wren/userra.htm