The Cutting Edge™ May 2004

Public Policy

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides employment and reemployment rights to all uniformed service members. These rights extend to persons who have been absent from a position of employment because of "service in the uniformed services," such as the performance of duty on a voluntary or involuntary basis in a uniformed service, including active duty; active duty for training; initial active duty for training; inactive duty training; full-time National Guard duty; absence from work for an examination to determine a person's fitness for the above types of duty and funeral honors duty performed by National Guard or reserve members.

USERRA rights cover the cumulative length of time that an individual may be absent from work for military duty and retain their reemployment rights for five years. USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits, determined by seniority. However, USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the "escalator" position. USERRA also reaffirms and clarifies that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

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. Departing service members must be treated as if they are on a leave of absence. Consequently, while they are away, they must be entitled to participate in any rights and benefits not based on seniority that are available to employees on nonmilitary leaves of absence, whether paid or unpaid.

If there is a variation among different types of nonmilitary leaves of absence, the most favorable treatment must be accorded the service member. The returning employees shall be entitled not only to non-seniority rights and benefits available at the time they left for military service, but also those that became effective during their service. 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.

If, prior to leaving for military service, an employee knowingly provides clear written notice of an intent not to return to work after military service, the employee waives entitlement to leave-of-absence rights and benefits not based on seniority. The employee must be made aware of the specific rights and benefits to be lost. Notices of intent cannot waive other rights and benefits that a person would be entitled to under the law, particularly reemployment rights.

Pension plans, which are tied to seniority, are given separate, detailed treatment under the law. If a person has been absent for military service for 91 or more days, an employer may delay making retroactive pension contributions until the person submits satisfactory documentation. Contributions will still have to be made for persons who are absent for 90 or fewer days.

Service members must, at their request, be permitted to use any vacation that had accrued before the beginning of their military service instead of only being allowed to take unpaid leave. However, it continues to be the law that service members cannot be forced to use vacation time for military service.

The law provides for health benefit continuation for persons who are absent from work to serve in the military, even when their employers are not covered by COBRA. (Employers with fewer than 20 employees are exempt from COBRA.) If a person's health plan coverage would terminate because of an absence due to military service, the person may elect to continue the coverage for up to 18 months after the absence begins or for the period of service (plus the time allowed to apply for reemployment), whichever period is shorter. The person cannot be required to pay more than 102 percent of the full premium for the coverage. If the military service was for 30 or fewer days, the person cannot be required to pay more than the normal employee share of any premium. A waiting period or exclusion cannot be imposed upon reinstatement if health coverage would have been provided to a person had the person not been absent for military service.

Under ordinary circumstances, a worker becomes eligible for leave under the Family and Medical Leave Act (FMLA) after working for a covered employer for at least 12 months, during which he or she completed at least 1,250 hours of work. A member of the National Guard or Reserve who is absent from employment for an extended period of time due to military service and who requests FMLA leave shortly after returning to civilian employment may not have actually worked for his or her employer for a total of 12 months or may not have performed 1250 hours of actual work with the employer in the 12 months prior to the start of the FMLA leave. To determine their eligibility for FMLA, employers must give the reemployed person credit for any months he or she would have been employed but for the military service. It should be noted that the 12 months of employment doe not have to be consecutive to meet this FMLA requirement.

The USERRA Advisor on the Department of Labor website (dol.gov) helps veterans and employers understand employee eligibility and job entitlements, employer obligations, benefits and remedies under the Act. Veterans' Employment and Training Service (VETS) has also published a non-technical USERRA Guide that contains general information about the law. Information on USERRA and other VETS programs may be found at www.dol.gov/vets.