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What Is Your USERRA IQ?

By Martha J. Cardi; Reed Group Chief Compliance Officer

How much do you know about USERRA?  With anticipated returns of United States military personnel to the civilian workforce, every employer should brush up on this important law.  Here are some questions and answers that every employer should know regarding USERRA.

USERRA is administered by the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS).

What are 3 key things an employer should know about USERRA?

  1. An employee’s right to take a leave of absence for military service is nearly absolute (See Questions 6, 7, and 8).
  2. An employer cannot require that the employee provide documentation before the leave or status reports during the leave (See Questions 6 and 8).
  3. The service member’s right to reinstatement is also nearly absolute as long as the service member reports back to work within the applicable time frame (See Questions 8, 9, 11, 13, and 14).  

1. What is USERRA?  What does “USERRA” stand for?  

USERRA, the Uniformed Services Employment and Reemployment Rights Act, provides protected leave of absence and rights to reemployment for individuals who leave their jobs to serve in the uniformed services (Army, Navy, Air Force, Marines, Coast Guard, National Guards, and others). 

“Service” includes voluntary or involuntary active duty, training, full-time National Guard duty, fitness examinations, funeral honors duty, and duty performed by intermittent employees of the National Disaster Medical System (part of Homeland Security). (20 C.F.R. §§ 1002.54 – 1002.62).

USERRA is administered by the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS).

2. What is the key difference between military-related leaves protected by USERRA and by FMLA ? 

USERRA provides job-protected leave of absence for the military service member to fulfill military obligations.

FMLA provides job-protected leave of absence for the family members of military service members—for exigencies (circumstances) related to deployment or to care for a relative injured in service.

3. How many employees must an employer have to be covered by USERRA?

USERRA covers ALL employers, so the employer only needs one employee to be covered. (20 C.F.R. § 1002.34).

4. How long does the employee have to be employed by the employer to be entitled to USERRA-protected leave?

No minimum length of employment is required under USERRA.  An employee is entitled to USERRA protection from the first date of employment. (20 C.F.R. § 1002.32).

5.  Can an employer refuse to hire a job applicant because he or she is in the National Guard or a Reserve unit? 

USERRA provides protection from job-discrimination because of past, current, or future military obligations, including employees who have applied for military service but aren’t yet in the service.  USERRA nondiscrimination protection extends to hiring, promotion, reemployment, termination, and benefits.(20 C.F.R. Subpart B).

6. What must the employee provide to the employer to be entitled to USERRA military leave?

An employee does not have to give an employer any paperwork when requesting USERRA leave.  This means that the employee doesn’t even have to show enlistment papers or orders to service upon taking USERRA leave. An employee must give “advance” notice as is reasonable under the circumstances, but USERRA does not specify how much notice.  The employee’s notice can be verbal or written. 

NO notice is required if military necessity prevents giving the notice, or if giving notice is otherwise “impossible or unreasonable”.

Notice may be given by the individual or by a military officer [and the employer should also accept notice from a family member]. (20 C.F.R. §§ 1002.85 – 1002.88).

7.  How long following notice of an employee’s upcoming military service does the employer,  or an administrator such as Reed Group, have to send a determination letter approving or denying the leave?

Trick question! An employer, and therefore its administrator, is not required to send an approval, denial, or notice because military leave is an absolute right that cannot be denied by the employer.  So, if employer WANTS to send a notice of rights, it can but is not required to and there is no time limit.

Nonetheless, it is a good practice to send notice to acknowledge the leave and to advise the employee of USERRA issues such as deadlines to report back to work from service, or any company military service benefit. This is beneficial to the employee, and makes a record in the employee’s file for the employer’s purposes.

8. Is an employee entitled to job restoration under USERRA?  

Yes, an employee returning from USERRA leave is entitled to job restoration. Dishonorable discharge and a few other negative circumstances will disqualify an employee from reemployment rights (e.g., court martial, having gone AWOL, or being imprisoned by a civilian court. (20 C.F.R. §§ 1002.134 – 1002.138).

There are no USERRA requirements as to where the employee has served or that the employee keeps the employer notified of status.

9.  What is the duration of job protection provided by USERRA for an employee on military leave?

An employee can serve in the military for 5 cumulative years and still retain job protection and reemployment rights with the employer..   Many exceptions swallow the rule:

  • Required training for Reservists and National Guard, including two-week annual training and weekend drills.
  • Active duty by volunteers (e.g., Reservists) supporting operational missions—examples include reservists ordered to service in Iraq or Afghanistan
  • Service ordered due to various national emergencies.
  • Service members involuntarily retained on active duty beyond expiration of the 5-year period
  • And many more exceptions.

(20 C.F.R. §§ 1002.99 – 1002.103).

10. Can an employer require an employee to use vacation time or paid sick leave for short leaves for military training?

No, the employer must allow the employee to use accrued paid vacation at the beginning of leave instead of unpaid leave, but cannot require the employee to do so. (20 C.F.R. § 1002.153).  Outside of the use of any accrued paid vacation, USERRA is unpaid leave. Many companies provide military service benefits such as pay differential.

11. Upon return to work is the service member employee entitled to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment?

It depends.  An employer must apply the “escalator” principle to provide the employee with reemployment in the position and with the seniority and benefits she WOULD HAVE ATTAINED if she had remained continuously employed, and is required to provide training to qualify the returning employee for that position if the employer would provide similar training to other employees.  So, the position upon return MIGHT be the same if the escalator principle does not require promotion or an increase in compensation or other benefits.

The concept of an “equivalent position” is found in the federal Family and Medical Leave Act (FMLA) and not actually a concept found in USERRA.  Under USERRA, an employee must be reemployed to his original position or perhaps a better one, based on the “escalator” concept.

The USERRA reemployment rules are very complicated and depend to some extent on how long the employee was on service leave.  (29 C.F.R. §§ 1002.191 – 1002.199).

12. Must an employer continue health insurance coverage for an employee on USERRA leave?

During the first 30 days of military leave health insurance continues as during employment.  The employee cannot be required to pay more than the normal employee share of the premium during this period.

After 30 days, the service member employee may continue his health insurance for up to a total of 24 months of absence by paying not more than 102 percent of the full premium (a COBRA–like coverage).  This coverage extends for the period of service plus the time allowed to apply for reemployment, not to exceed 24 months.

NOTE:  Some health insurance plans will not cover an individual during military service.  The US government provides insurance through TriMet.  However, USERRA does not limit the employee’s ability to continue insurance to his dependents only.  This will allow the employee to have coverage following return from service and before reemployment.

Upon reemployment, there is generally no waiting period or exclusion for reinstatement of the employee’s health coverage. (29 C.F.R. §§ 1002.163 – 1002.171).

13. How many days does an employee have to apply for reemployment following the completion of military leave?

When an employee returning from USERRA leave must apply for reemployment will depend on length of military service:

Service of 1 to 30 days:  employee must report back to work at the beginning of the calendar work day following completion of service, after allowance for safe travel home and an 8 hour rest period.

Service of 31 to 180 days:  An application for reemployment must be submitted within 14 days after completion of service.  This may be extended in extenuating circumstances.

Service of 181 or more days:  An application for reemployment must be submitted within 90 days after completion of service. (20 C.F.R. § 1002.115).

USERRA requires the employer to provide “prompt” reemployment, which depends upon the circumstances of each individual case.  20 C.F.R. §§ 1002.180 – 181). The longer the absence, the more time the employer might require to determine the correct position and/or give notice to another employee who must vacate the position to which the service member is entitled.  This might mean that an employer may be required to “evict” a current employee from his position to make way for the returning service member.

If an employee is injured or disabled during military service, the period of time during which an employee must apply for reemployment is extended. Initially there is a 2-year limit if the employee is hospitalized or convalescing during the period following military service, but this can be extended if circumstance beyond the employee’s control makes reporting impossible or unreasonable.  The extension is for “the minimum time required to accommodate” the specific circumstance. (20 C.F.R. § 1002.116).

14.  When the employee applies for reemployment following return from service, what, if anything, can the employer require of the employee as a condition of reinstatement?

If the employee has been absent for service for 31 days or more, the employer can require documentation (usually discharge papers but this is not specified) that establishes that:

  • The employee’s application for reemployment is timely (based on length of service/absence from work); [See Q 13 above.]
  • The person has not exceeded the five-year service limitation [after taking into consideration the many exceptions]; and
  • The person’s separation from service was not under a disqualifying circumstance such as dishonorable discharge.  [See Q 7 above.]

If the employee was absent for service for 30 days or less, the employer cannot require any documentation upon return.(20 C.F.R. § 1002.121).

15. What if the employee misses the deadline to report to work or apply for reemployment?

An employee who missed the deadline to report to work or apply for reemployment is subject to the employer’s rules regarding unexcused absences.  (20 C.F.R. § 1002.117).

For example, if the returning service member misses the deadline for application for reemployment (based on her length of service) by 5 working days, the employer can refuse to rehire the service member if the employer’s usual attendance policies (as written and as enforced) would allow termination of another employee who had 5 unexcused absences.  If the employer allows 10 unexcused absences during a year before termination, the returning employee would have 5 absences on her record but the employer could not refuse to rehire her due to reporting back late.

16. When an employee returns from military leave, does she return to “employment at will” status?

 USERRA provides that a returning service member may not be discharged without cause:

  • For one year after the date of reemployment, if the military service was for more than 180 days
  • For six months after the date of reemployment, if the military service was for 31 to 180 days
  • Persons who serve for 30 days or fewer are not protected from discharge without cause, but they are still protected from discharge or other adverse employment action based on military service.

(20 C.F.R. § 1002.247)

17.  What is an employee’s FMLA entitlement upon return to work from military service?

An employee returning from military service is entitled to the same FMLA entitlement as if they had continued working and not taken USERRA leave.  The employee still must meet overall 12 months/1250 hours requirements, but military service counts toward these.

One small difference:  if an employee has a break in service of longer than 7 years, the separate periods of service are not added to satisfy the total 12 months of service for FMLA eligibility UNLESS the break in service is caused by the employee’s National Guard or Reserve military service obligation. (29 C.F.R § 825.110(b)(2)(i) and (c)(2)).

18. Where can I get more information?

The Veterans’ Employment and Training Service, has a guide entitled “A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA)” which was most recently published in April 2005. The 2005 publication is still current and can be found at: http://www.esgr.org/Site/LinkClick.aspx?fileticket=njA5ZaoUY5k%3D&tabid=178

The U.S. Department of Labor also has the following information and links: http://www.dol.gov/vets/programs/userra/

The Equal Employment Opportunity Commission has the following Guide for Veterans:

http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm

 



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