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With President Bush’s announcement that he is calling Reservists to duty, many employers are asking about their responsibilities to employees who take a military leave of absence. The Uniformed Services Employment and Reemployment Rights Act (USERRA) governs employers’ rights and obligations in this area. As a general rule, the USERRA requires employers to grant military leaves of absence and provides job protection and reinstatement rights to employees who serve in the uniformed services. Service in the uniformed services includes duty on either a voluntary or involuntary basis, and extends to Reserve duty.

 

 

The USERRA requires employees to provide employers with advance notice under most circumstances. Notice may be either written or verbal. No notice is required if military necessity prevents the giving of notice or it would be otherwise impossible or unreasonable to provide it.

 

 

Although there is a general cumulative five-year length of service cap, there are many exceptions. Included within the exceptions are service members who are involuntarily retained on active duty beyond the expiration of their obligated service date, as occurred with some people who served in Operations Desert Shield and Storm. The exceptions also include an involuntary order to, or to be retained on, or because of a war or national emergency declared by the President or Congress.

 

 

All written or verbal orders are considered valid when issued by competent military authority. If a military leave of absence is for more than 30 days, an employer has the right to request documentation.

 

 

If an employee’s health plan coverage would otherwise terminate, the employee may elect to continue coverage for up to 18 months or for the period of service, whichever is shorter. The employee cannot be required to pay more than 102 percent of the full premium for the coverage. Continuation obligations are present even if the employer is not otherwise covered by COBRA (for example, an employer with less than 20 employees). If the military service is for 30 or fewer days, the employee’s coverage must continue uninterrupted and the employee cannot be required to pay more than he/she would otherwise be required to pay. Employees who do not choose to continue benefits are generally covered by TRICARE, the Defense Department’s managed healthcare program for service families. Upon return from service, health insurance coverage must be reinstated without any waiting period or exclusions for preexisting conditions, other than waiting periods or exclusions that would have applied absent the military service.

 

USERRA requires that returning employees who meet the law’s eligibility criteria be treated as if they had been continuously employed for pension purposes. This applies to vesting and to benefit computation. In addition, an employee who would have become eligible to participate in a pension plan during his/her service time should be placed in the plan retroactive to the date of initial eligibility.

 

Employers are not required to continue an employee’s pay while on military duty. Upon return, 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.

 

 

Depending upon length of service, returning employees generally have between eight hours and 90 days to return to work. This time period may be extended for up to two years for persons who are convalescing due to a disability incurred or aggravated during military service.

 

As a general rule, employees who have served between one and 90 days must be placed in the position they would have held had they been continuously employed. Similarly, those who have served for more than 90 days must be placed in the same position, or a position of like seniority, status and pay.

 

The rules outlined above are general in nature and may vary depending upon specific circumstances. For further information, please feel free to contact John Zandy, Peter Lefeber, Sherry Dominick or Karen Clute in New Haven (203-498-4400), Steve Harris, Peter Wendzel or Marcia Keegan in Hartford (860-297-3700) or Larry Peikes in Stamford (203-363-7600). Information is also available through various websites, including www.esgr.org and www.dol.gov.