by Laura Pokrzywa, HR Consultant
Every person who enters military service must first swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and to “obey the orders of the President of the United States and the orders of the officers appointed over them.” To fulfill that oath, service members must often put civilian careers and obligations on hold. Employers may be called upon to participate in the mission by providing job-protected leaves of absence for military training and active-duty service.
With military activities increasing around the globe, this is a good time to review employers’ obligations to employees who also serve as reservists or guardsmen in the United States Armed Forces.
First, some definitions…
“Active duty” soldiers serve in the military as their full-time job. The military is their career.
“Reservists” maintain a part-time commitment to the military while maintaining a civilian lifestyle that typically includes a full-time civilian job. These employees must be available for military training one weekend a month and two weeks per year. These employees also may be called up to active duty by the federal government to support critical military missions.
“National Guard” members require leave for the same trainings; however, they can be called to active duty by either their state’s governor (for local emergencies) or the federal government (for national defense or overseas deployment).
What is USERRA?
All these employees are protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is a federal law which guarantees an employee returning from military service or training the right to be reemployed at his or her former job (or as nearly comparable a job as possible) with the same benefits.
USERRA applies to virtually all employers, regardless of size. This federal law protects all full-time and part-time employees, unless their employment is for a brief, limited, non-recurring period. Employers should also be aware that most states have enacted laws that offer similar protections for employees called to active duty by the state. Some states even offer expanded protections.
USERRA guarantees reemployment rights following military service to employees who meet the following eligibility criteria:
- They were required to leave their civilian job;
- They (or their commanding officer) gave the employer notice (verbal or written) of their need to leave to perform military service (unless the nature of the service made notice impossible or unreasonable);
- The cumulative period of service does not exceed five years (with limited exceptions);
- They are released from military service under honorable or general conditions; and
- They report back to work or apply for reemployment within time constraints prescribed by law.
Employees who meet the criteria outlined above are entitled to the following:
- Prompt reemployment.
- Seniority, seniority-related benefits (including pension), status, and rate of pay as if the employee was continuously employed during the military absence.
- Immediate reinstatement of health insurance for the employee and previously covered dependents, with no waiting period and no exclusion of preexisting conditions, with limited exceptions.
- Training or retraining as needed to qualify for reemployment.
- Reasonable accommodations for any disability that resulted from military service or that was aggravated by that service.
- If the employee’s period of service was 181 days or more, they are protected from discharge, except for cause, for one year. If the service was for 31-180 days, the period of protection from discharge is 180 days.
What about Healthcare Benefits?
If the period of service is 30 days or less, the employee is responsible for paying their share of the premium as if they were still working. The employee may elect to continue your group health insurance for a period up to the first 18 months of military service. However, if the service is 31 days or more, the employee may be required to pay up to 102% of the total premium.
Don’t Forget about Military Family Members
You may not have any reservists or guardsmen on payroll; however, you may have an employee who is related to a service member that has been deployed overseas. Employees who require time off to help a spouse, child, or parent who is being deployed, is returning from deployment, or who was injured during a deployment may have rights under certain federal and state laws.
The federal Family and Medical Leave Act (FMLA) offers job protections and continuing benefits to eligible employees requiring leave to care for a family member who is injured during deployment or to address various family needs that arise in connection with the deployment of a family member. Several states also offer paid family and medical leave for similar reasons. If your organization is covered by these laws, be sure you have a clear policy that addresses employees’ rights and obligations regarding such leave.
Are You Prepared?
Compliance with USERRA and applicable state laws is critical for all employers. This is a good time to review your policies.
- Your Military Leave policy should not limit eligibility for protections to certain employees. It also must not require the service member to use available paid time off while on military leave.
- Your Anti-Discrimination and Harassment policies should prohibit discrimination, harassment, or retaliation tied to past, current, or future military service.
- Does your Jury Duty Leave policy offer paid leave? Considering recent circuit court rulings, employers who offer paid jury duty leave should offer comparable pay for military leave to avoid discrimination claims under USERRA.
If you are an employer with questions, you can visit the U.S. Department of Labor’s “USERRA Advisor” website which is designed to help employers and employees understand their rights and responsibilities. You can also contact our Risk Management Division by phone at 855-873-0374 or by email at . We are happy to help!
If you are an employer with questions about leave policies, leadership training, or if you have questions about any HR issue, contact our Risk Management Division by phone at 855-873-0374 or by email at . We will be happy to help!
Disclaimer: This information is for informational purposes only and not for the purpose of providing legal advice. This article does not create an attorney-client relationship between Keystone’s Risk Management Division and the reader.