by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
April 04, 2018
One of my favorite leave law training topics for employers is USERRA – the Uniformed Services Employment and Reemployment Rights Act. As the name implies, this is the law that provides job protections for employees who are absent from work to serve in the U.S. Armed Forces (Army, Navy, Air Force, Marines, Coast Guard, National Guard, Reserves, and others). USERRA also has protections for job applicants and for servicemembers after they have returned to work.
Why is this a favorite of mine? Because USERRA turns all of our usual expectations of a leave of absence law upside down. Trainees are amazed as they learn about USERRA: Supporting documentation comes at the end of the leave, not the beginning. The returning employee might be entitled to restoration to a better position than he or she left. The employer isn’t required to provide the military employee notice of approval of the leave, because it can’t be denied.
See what I mean?
Now join us on a journey through the world of USERRA, and learn things you never knew before!
Military protections under FMLA vs. USERRA. The FMLA provides job-protected time off for “qualifying exigencies” for an employee whose family member is a military servicemember. Exigencies include family matters that need immediate attention due to the employee’s family member’s impending or current military service. In contrast, USERRA provides job protection and other rights to employees who are themselves the military servicemember.
Covered service-related activities. Reemployment rights extend to persons who have been absent from a position of employment because of voluntary or involuntary “service in the uniformed services,” including:
- Active duty and active duty for training
- Initial active duty for training
- Inactive duty training
- Full-time National Guard duty
- Fitness for duty exams
- Funeral honors duty
- Training for and duty performed by intermittent employees of the National Disaster
Medical System, relating to a public health emergency
Covered employers and eligible employees. OK, this part is easy. All employers are covered regardless of size and all servicemember employees are eligible, regardless of length of employment. The law also provides protections for applicants who have served or are currently in military service. Required employer notice to employees. All employers are required to provide to persons covered by USERRA notice of their rights, benefits and obligations. The DOL has a poster “Your Rights Under USERRA” for this purpose which employers may provide by posting it where employee notices are customarily placed, or by handing or mailing out the notice, or distributing the notice by e-mail. The poster is available here.
Employee notice of military service. Employees must provide advance notice of military service to their employers. However, notice may be either written or oral and there is no time frame within which the employee must give notice. And, no notice is required if:
- Military necessity prevents the giving of notice (for example, if a mission could be
compromised by public knowledge); or
- The giving of notice is otherwise impossible or unreasonable.
Duration of job-protected service and leave of absence. The general duration of job protection is 5 cumulative years of covered military service, but the many exemptions really swallow the rule. The 5-year limit will not apply when service is due to factors such as:
- A service obligation that requires a commitment longer than 5 years
- Voluntary or involuntary service that is ordered or extended due to a war or national emergency
declared by the President or Congress. This specifically includes many service obligations
following September 11, 2001, including service relating to the wars in Iraq and Afghanistan.
- Service by members who are ordered to active duty in support of a “critical mission or requirement”
of the uniformed services as determined by the Secretary of the military branch involved.
- Weekend, annual, and other Reserves training.
Pay and benefits during USERRA leave. USERRA leave is generally unpaid unless the employer has a company policy that provides pay. More on that later.
Servicemembers must be allowed, but cannot be required, to use accrued vacation or other paid time off during military service. Paid time off does not continue to accrue during the military member’s absence from work, but certain rights based on seniority do accrue during military leave. See the discussion of “reemployment rights” in the second installment of this topic.
The employee can continue health coverage for up to 24 months (or until the end of service, whichever is shorter) after leaving employment for military service. The employee cannot be required to pay more than 102% of the usual premium.
Employee’s time limits for reporting back to work. To qualify for USERRA’s protections, a service member must report to work or apply for reemployment within certain time limits that depend on the duration of a person’s absence for military service. Employers must allow a longer time if extenuating circumstances prevented timely reporting to work:
Service of 1 to 30 days: Employee must report to work by the beginning of the first regularly scheduled work period on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an 8-hour rest period.
Following a fitness exam: Same as for service of 1 to 30 days above, regardless of the length of the person’s absence.
Service of 31 to 180 days: An application for reemployment must be submitted to the employer no later than 14 days after completion of a person’s service.
Service of 180 or more days: An application for reemployment must be submitted to the employer no later than 90 days after completion of a person’s military service.
Watch for our second installment on this topic. We will take on issues relating to the employee’s return to work such as: what position the employee gets upon completion of service, exceptions, USERRA interaction with company policies, and our recommended best practices for employers.
MATRIX CAN HELP! At Matrix we offer a full suite of leave of absence and disability management tools. These include management of employer-specific leave plans, as well as FMLA, state leave laws, ADA accommodations, disability plans . . . and of course, USERRA. To learn more, ping us at [email protected].