The Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA) protects permanent employees (temporary employees are not covered) who serve in the Uniformed Services. USERRA requires employers to allow five cumulative years of military duty. All employers, regardless of size, are required to adhere to the requirements of USERRA.
While an employer does not have to pay an employee for the time spent on military leave, at an employee's request an employer must allow the employee to use any accrued paid vacation time or similar paid time off towards military service. However, the employer may not require an employee use paid leave time.
An employee on military leave must be treated the same an employee on non-military leave. Therefore, the employee may be required to pay the normal employee contribution for benefits if employees on non-military leaves are also required to do so. The employer is relieved of this duty if the employee provides written notice of his or her intent not to return after military service. Employees who are covered by the employer's group health plan may chose to continue coverage for up to 18 months during military leave, similar to COBRA coverage. These employees may not be charged more than 102 percent of the full premium. However, employees on leave for less than 31 days may not be required to pay more than the normal employee share, if any.
Employees must notify their employer of their intent to return to work after completing military service. If an employee fails to properly report or apply for re-employment, he or she does not automatically forfeit his or her entitlement to the rights and benefits protected by USERRA. Rather, that employee is subject to the rules, policies, and practices of the employer with regard to discipline for absence from work. The employer may also require documentation from the employee upon return to establish that the employee is within the five-year cumulative period, that the employee has followed the requirements for returning, and that the employee was not dishonorably discharged.
If the employee has been absent on military service for 90 days or less, he or she is entitled to be re-employed in the position that he or she would have held in the absence of military service. The employer is required to make reasonable efforts at training the employee if he or she is lacking a qualification for this position. If this fails, the employee is entitled to the position that he or she held when military leave began. The employee is entitled to promotions he or she would have received the military leave had never occurred.
If the employee was on military leave for more than 90 days, the employee is entitled to the position he or she would have held if there had been no interruption due to military service, or a position of similar seniority, status, and pay. If the employee is not qualified to hold that position, the employer must reasonably attempt to train him or her. If the employer is unable to qualify the employee, the employee is entitled to the same position the employee held before military leave began or a position of similar seniority, status, and pay.
Employers are required to make reasonable accommodations to return a person, disabled because of military service, to the position that he or she would have held had he or she not had military leave. If this is impossible, even with a reasonable accommodation, the employer must place the employee is a position with equivalent seniority, status, and pay, for which the employee is qualified or could become qualified after reasonable efforts by the employer. Should both of these be impossible, the employee is entitled to a position of lesser status and pay, but with equal seniority.
Additionally, employers may not fire an employee who has returned from military leave for one year if the employee served for more than 180 days, or for 180 days if the employee served for 30-180 days, unless the employer has good cause.
An employer is not required to re-employ an employee if re-employment is unreasonable or impossible because the employer's circumstances have changed. Additionally, an employer is not required to re-employ employees who have been absent for more than five cumulative years for military service. Finally, an employer is not required to re-employ an employee if doing so would place an undue hardship on the employer. The employer has the burden in establishing each of these defenses.
The military leave laws can be tricky to implement. If you have any questions concerning military leave, it would be best to consult legal counsel.
