Military leave

Scope

The federal law that protects of the rights of U. S. service members is the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

USERRA potentially covers every individual in the country who serves in or has served in the uniformed services. The Act applies to all employers in the public and private sectors, including federal employers. According to the Act, an employee is any person employed by an employer. This includes any person who is a citizen, national, or permanent resident alien of the United States. This also includes those employed in a workplace in a foreign country by an employer that is organized in the U. S. or that is controlled by an entity organized in the U. S.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

The USERRA was signed into law on October 13, 1994. USERRA clarifies and strengthens the Veterans’ Reemployment Rights (VRR) Statute. The Act itself can be found in the United States Code at Chapter 43, Part III, Title 38. The Act:

The law encourages noncareer uniformed service, so America can enjoy the protection of those services, while maintaining a balance with the needs of employers who also depend on these same individuals.

The law also ensures that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service. USERRA provides enhanced protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability.

Another purpose of the law is to minimize disadvantages that may occur when someone needs to be away from his or her civilian employment to serve in this country’s uniformed services. These uniformed services include the following:

• Army, Navy, Marine Corps, Air Force, or Coast Guard;
• Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve;
• The Army National Guard or the Air National Guard;
• Commissioned Corps of the Public Health Service; and
• Any other category of persons designated by the President in time of war or emergency.

USERRA is administered by the Department of Labor, through the Veterans’ Employment and Training Service (VETS). VETS helps those experiencing service-related problems with their civilian employment, and informs employers about the Act.

Some states also have laws that protect military service members. When determining which law applies, you should look at which law provides the greater benefit to the employee.

Posting requirement. Employers are required to provide to persons entitled to the rights and benefits under USERRA, a notice of the rights, benefits and obligations of such persons and such employers under USERRA. Employers may provide the notice, “Your Rights Under USERRA,” by posting it where employee notices are customarily placed. Employers are free, however, to provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing the notice via electronic mail).

Being called to duty. Bear in mind that the term “service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority, and includes the following:

• Active duty,
• Active duty for training,
• Initial active duty for training,
• Inactive duty training,
• Full-time National Guard duty,
• Obtaining an examination to determine the fitness of the person to perform any of the above duties, and
• Funeral honors duty.

The law, however, does not cover temporary employees. Temporary employees include those who have positions that are brief or non-recurrent, and that cannot reasonably be expected to continue indefinitely or for a significant period.

Advanced notice. USERRA requires that employees provide advance written or verbal notice to their employers for all military duty, unless giving notice is impossible, unreasonable, or precluded by military necessity (military necessity for purposes of the notice exemption is to be defined in regulation of the Secretary of Defense). Employees may provide the notice themselves, or it may be provided by an appropriate officer of the military branch of the military in which the employee will be serving. Employers may not require that employees provide documentation supporting the need for leave before the leave is taken.

Duration of service. Just how long can an employee be on military leave for purposes of USERRA protection? The cumulative length of service that causes an employee’s absences from a position may not exceed five years.

Eight categories of service are exempt from the five-year limitation. These are as follows:

1. Service needed beyond five years to complete a period of obligated service. Some military specialties, such as the Navy’s nuclear power program, require initial active service obligations beyond five years.
2. Service from which an employee, through no fault of his or her own, is unable to obtain a release within the five year limit. For example, the five-year limit will not be applied to members of the Navy or Marine Corps whose obligated service dates expire while they are at sea. Nor will it be applied when service members are involuntarily retained on active duty beyond the expiration of their obligated service date. This was the experience of some employees who served in Operations Desert Shield and Storm.
3. Required training for reservists and National Guard members. The two-week annual training sessions and monthly weekend drills required by statute for reservists and National Guard members are exempt from the five-year limitation. Additional training requirements certified in writing are also excluded. These need to be certified by the Secretary of the service.
4. Service under an involuntary order to, or to stay on, active duty during domestic emergency or national security-related situations.
5. Service under an order to, or to stay on, active duty (other than for training) because of a war or national emergency declared by the President or Congress. This includes service not only by those involuntarily ordered to active duty, but also service by volunteers who receive orders to active duty.
6. Active duty (other than for training) by volunteers supporting “operational missions” for which Selected Reservists have been ordered to active duty without their consent. These operational missions involve circumstances other than war or national emergency. Examples of this was the U.S. military involvement in support of restoration of democracy in Haiti (“Uphold Democracy”) as well as the operation in Bosnia (“Joint Endeavor”). This sixth exemption for the five-year limitation covers those who are called to active duty after volunteering to support operational missions. Those involuntarily ordered to active duty for operational missions would be covered by the fourth exemption, above.
7. Service by volunteers who are ordered to active duty in support of a “critical mission or requirement” in times other than war or national emergency, and when no involuntary call up is in effect. The Secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement.
8. Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States.

Disqualifying service. When would service be disqualifying? There are four circumstances as follows:

1. Separation from the service with a dishonorable or bad conduct discharge.
2. Separation from the service under “other than honorable” conditions. Regulations for each military branch specify when separation from the service would be considered “other than honorable.”
3. Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war.
4. Dropping someone from the rolls when absent without authority for more than three months or who is imprisoned by a civilian court.
5. Reemployment protection does not depend on the timing, frequency, duration, or nature of someone’s service as long as the basic eligibility criteria are met.

During leave. While employees are absent from work to serve their country, they retain certain employment rights. Some companies provide greater benefits than what is required. There is an organization for employers who would like to provide greater benefits, or to simply learn more about such activities. This organization is the National Committee for Employer Support of the Guard and Reserve (ESGR) (www.esgr.org ), which is an agency within the Office of the Assistant Secretary of Defense for Reserve Affairs. It was established in 1972 to promote cooperation and understanding between reserve members and their civilian employers, and to help resolve conflicts that may occur from an employee’s military commitment.

While performing military service, an employee is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

Pay. Employers do not have to pay an employees while they are performing uniformed service; however, an employer is free to do so if desired. Some companies, for example, will make up the difference in pay between an employee’s military pay and what they were receiving on the job.

FMLA. There are some special considerations about the Family and Medical Leave Act (FMLA) eligibility and those who are on military leave. The FMLA covers family and medical situations such as the birth or adoption of a child or the serious illness of the employee or an employee’s family member. It also provides leave when an employee needs time off due to a family member’s military service. The USERRA, on the other hand, provides leave when an employee needs time to serve in the military.

• Returning service members who are reemployed by their civilian employers must receive all benefits of employment that they would have obtained had they been continuously employed, such as eligibility for FMLA.
• The service member’s FMLA eligibility will depend upon whether the eligibility requirements have been met had the service member not taken military leave. Therefore, someone reemployed following military service should be given credit for the period of military service towards the months-of-employment eligibility requirement.
  • For example, you have an employee who has worked for you for nine months and is ordered to active military service for eight months. After serving in the military, the employee is reemployed. Upon reemployment, the employee must be considered to have been employed for more than the required 12 months (nine months actually employed plus eight months while serving in the military) for purposes of FMLA eligibility.
• When it comes to the FMLA’s 1,250 hours-of-service requirement for eligibility, you should credit a returning employee with the hours-of-service that would have been performed but for the period of military service in determining FMLA eligibility. As a result, someone reemployed has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1,250 hour requirement.
• In order to determine the hours that would have been worked, look at the employee’s pre-service work schedule for calculation. For example, an employee who works 40 hours per week returns after 20 weeks of military service and requests leave under the FMLA. To determine the employee’s eligibility, add the hours the employee would have worked (20 x 40 = 800 hours) to the hours actually worked during the 12-month period prior to the start of the leave to determine it the 1,250-hour requirement is met.

Health benefits. If an employee’s health plan coverage would terminate because of an absence due to military service, the employee may elect to continue the health plan coverage for up to 18 months after the absence begins, or the period of service, (plus the time allowed to apply for reemployment) whichever is shorter.

• Notice. You cannot require the employee to pay more than 102 percent of the full premium for the coverage — if the military service was for 30 or fewer days, you cannot require the employee to pay more than the normal employee share of any premium. Employees need to receive a notice explaining their rights under the plan.
• Reinstating coverage. When an employee returns from service, you must reinstate health insurance coverage without any waiting period or exclusions for preexisting conditions, unless there would have been waiting periods or exclusions that would have applied even if the employee had not been absent for uniformed service.
  • This rule does not apply to the coverage of any illness or injury incurred in, or aggravated during, performance of service in the uniformed service.
• Multi-employer plans. If you have multi-employer plans, the plan sponsor needs to allocate liability for employer contributions and benefits. If the sponsor does not provide for allocation, the employee’s last employer before military service is to be allocated the liability or, if that employer no longer functions, to the plan.

COBRA. The Consolidated Omnibus Budget Reconciliation Act (COBRA) provides health coverage continuation rights to employee’s and their families after an event such as a reduction in employment hours. Remember that employers with fewer than 20 employees are exempt from COBRA.

USERRA, however, provides for health benefit continuation for employees who are absent from work to serve in the military, even when their employers are not covered by COBRA.

Both COBRA and USERRA generally allow individuals called for active duty to continue coverage for themselves and their dependents under an employment-based group health plan for up to 18 months.

HIPAA. The Health Insurance Portability and Accountability Act (HIPAA), may give a service member and th service member’s family rights to enroll in other group health plan coverage if it is available to them (for example, if a spouse’s employer sponsors a group health plan). The employee and the employee’s family have this opportunity to enroll regardless of the plan’s otherwise applicable enrollment periods. However, to qualify, they must request enrollment in the other plan (for example, the spouse’s plan) within 30 days of losing eligibility for coverage under the employer’s plan. After special enrollment is requested, coverage must be effective no later than the first day of the first month following the request for enrollment. If the employee is on active duty more than 30 days, coverage in another plan through special enrollment is often cheaper than continuation coverage because the employer often pays a part of the premium.

Vacation. Service members may (but are not required) to use accrued vacation during their military leave. USERRA indicates that service members cannot be forced to use vacation time for military service. They may also use leave, if allowed by company policy. This is not generally FMLA leave, as military leave does not meet the criteria for FMLA leave.

Promotion. A key concept under USERRA is reemployment to what is known as the “escalator” principle. This involves allowing returning service members to step back onto the seniority escalator at the points they would have occupied if they had not gone on military leave.

The position may not necessarily be the same job the employee previously held. If, for example, it is reasonably certain that that returning service members would have been promoted had they not been absent, they would be entitled to that promotion upon reinstatement. On the other hand, the position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be in layoff status.

Pensions, retirement plans. Pension plan coverage for service members, like health insurance coverage, is clarified under USERRA. Pension plans are tied to seniority. According to the law:

• If you maintain a pension plan, you must treat a reemployed employee as not having incurred a break in service;
• You must consider military service as employment service for vesting and benefit accrual purposes;
• The employer is liable for funding any resulting obligation; and
• The reemployed employee is entitled to any accrued benefits from employee contributions only to the extent that contributions to the plans are actually made.

If a plan provides retirement income to employees until the termination of employment or later, it must comply with the requirements of the USERRA. Defined benefits plans, defined contribution plans, and profit sharing plans that are retirement plans are also covered.

If you have a multi-employer defined contribution pension plan, the sponsor maintaining the plan may allocate among the participating employers the liability of the plan for pension benefits accrued by employees who are absent for military service.

If you provide no cost-sharing arrangement, the full liability to make the retroactive contributions to the plan will be allocated to the employee’s last employer before the military service or, if that employer no longer functions, to the overall plan.

If you participate in a multi-employer plan, you must provide written notice to the plan administer within 30 days after an employee is reemployed, of the reemployment.

Employers are not required to make contributions to employee 401(k) plans while the employees are on active duty. However, once employees return from military duty and are reemployed, the employer must make the employer contributions that would have been made if the employees had been employed during the period of military duty.

• If employee contributions are required or permitted under the plan, the employee may take up to three times the duration of the military duty or five years, whichever ends first, to make up the contributions.
• If the employee makes up the contributions, the employer must make up any matching contributions.
• Employer contributions do not have to include earnings or forfeitures that would have been allocated to the employee if those contributions had been made during their military service.

To determining an employer’s liability or an employee’s contributions under a pension benefit plan, base the employee’s compensation during the period of his or her military service on the rate of pay the employee would have received but for the absence during the leave.

Returning to work. Returning service members must be reemployed in the job that they would have attained if they had not been on military leave (the “escalator” principle). This includes the same seniority, status, and pay, as well as other rights and benefits determined by seniority. However, you must also make reasonable efforts (such as training or retraining) to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. If the employee cannot qualify for the escalator position, there are provisions for alternative reemployment positions.

The period an individual has to make application for reemployment or report back to work after military service is based on time spent on military duty; not on the category of service performed. Limits for returning to work depend, with the exception of fitness for service examinations, on the duration of an employee’s military service. The general breakdown is as follows:

• Service of 1 to 30 days. The employee must report to his or her employer by the beginning of the first regularly scheduled work day that would fall eight hours after the employee returns home.
  • For example, an employer cannot require a service member who returns home at 10:00 p.m. to report to work 2½ hours later at 12:30 am. However, the employer can require the employee to report for the 6:00 am shift the next morning.
  • If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible.
  • Fitness exam. The time limit for reporting back to work for an employee who is absent from work in order to take a fitness-for-service examination is the same as the one above for employees who are absent for 1 to 30 days. This period will apply regardless of the length of the employee’s absence.
• Service of 31 to 180 days. An application for reemployment must be submitted no later than 14 days after completion of an employee’s military service. If submitting the application is impossible or unreasonable, through no fault of the employee, the application must be submitted as soon as possible.
• Service of 181 or more days. An application for reemployment must be submitted no later than 90 days after completion of an employee’s military service.
  • Injury or illness occurring or aggravated during a period of service.
  • If an employee is hospitalized or convalescing because of an injury or illness occurring or aggravated during military service, the reporting or application deadlines are extended for up to two years.
  • If circumstances make reporting within the two-year period impossible or unreasonable, the two-year period will be extended by the minimum time required to accommodate the employee.

Reinstatement. An employee whose military service lasted 1 to 90 days must be promptly reemployed in the following order of priority:

1. In the job the employee would have held had they emplpyee remained continuously employed—so long as the employee is qualified for the job, or can become qualified after reasonable employer efforts to qualify the employee; or
2. If the employee cannot become qualified for the position in (1), in the employee’s pre-service position—so long as the employee is qualified for the job or could become qualified after reasonable employer efforts; or
3. If the employee cannot become qualified for the position in either (1) or (2), in any other position, which is the nearest approximation of (1) for which the employee is qualified, with full seniority.

An employee whose military service lasted 91 days or more must be promptly reemployed in the following order of priority:

1. In the job the employee would have held had the employee remained continuously employed, or a position of equivalent seniority, status, and pay—so long as the employee is qualified for the job, or can become qualified after reasonable employer efforts to qualify the employee; or
2. If the employee cannot become qualified for the position in (1), in the employee’s pre-service position—so long as the employee is qualified for the job or could become qualified after reasonable employer efforts; or
3. If the employee cannot become qualified for the position in either (1) or (2), in any other position, which is the nearest approximation of (1) for which the employee is qualified, with full seniority.

Returning service members must be “promptly reemployed.” What is prompt will depend on the circumstances of each individual case. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. On the other hand, reinstatement following five years on active duty might require giving notice to an incumbent employee who has occupied the service member’s position and who might possibly have to vacate that position.

Disabled returning employees. The following three-part reemployment process is required for employees with a disability incurred during service:

1. The employer must make a reasonable effort to accommodate the employee’s disability so that the employee can perform the duties of the position that the employee would have held if the employee had remained continuously employed.
2. If, despite reasonable accommodation efforts, the employee is not qualified for the position in (1) due to his or her disability, the employee must be reemployed in a position of equivalent seniority, status, and pay—so long as the employee is qualified to perform the duties of the position, or could become qualified to perform them with reasonable employer efforts.
3. If the employee does not become qualified for the position in either (1) or (2), the employee must be employed in a position that, consistent with the circumstances of that case, most nearly approximates the position in (2) in terms of seniority, status and pay.

These requirements apply to all employers, regardless of size.

Conflicting reemployment claims. If two or more employees are entitled to reemployment in the same position, the following reemployment scheme applies:

• The employee who first left the position has the superior right to it.
• The employee without the superior right is entitled to employment with full seniority in any other position that provides similar status and pay in the order of priority under the reemployment scheme otherwise applicable to him or her.

Exemptions from reinstatement. Reemployment need not be granted if an employer’s circumstances have changed so much that reemployment of the employee would be impossible or unreasonable.

• Reduction in force. If while an employee is away on military duty, there was a reduction in force and the employee’s position was eliminated, you would not need to reemploy that employee, since the position is no longer available, and the employee would have been caught in the reduction in force had the employee not gone on military leave.
• Undue hardship. If accommodating those with disabilities incurred during military service would cause “undue hardship,” employers are excused from trying to qualify returning service members, or from accommodating those with disabilities. (NOTE: The term “undue hardship” here has essentially the same meaning as under the Americans with Disabilities Act).
• Nonrecurrent employment. Reemployment is not required where the position left was for a brief and nonrecurrent period and could not reasonably be expected to continue indefinitely or for a significant period. The employer has to prove (not simply assert) the impossibility or unreasonableness, undue hardship, or the brief, nonrecurrent nature of the employment.
• Lack of documentation. If there is a lack of documentation at the time an employee requests return, employers may not use this as a basis to delay or deny reinstatement. If the documentation received later shows that the employee is not eligible for protection under USERRA, the employee may then be terminated at that point.

Documentation. Employers have the right to request that an employee who is gone for 31 days or more provide documentation showing that:

• The employee’s application for reemployment is timely,
• The employee has not exceeded the five-year service limitation, and
• The employee’s separation from service was other than disqualifying.

If an employee does not provide satisfactory documentation because it’s not readily available or doesn’t exist, the employer must still promptly reemploy the person. However, if, after reemploying the person, documentation becomes available that shows one or more of the reemployment requirements were not met, the employer may terminate the person. The termination would be effective as of that moment. It would not operate retroactively.

If an employee has been absent for military service for 91 or more days, an employer may delay making retroactive pension contributions until the employee submits satisfactory documentation. However, contributions will still have to be made for employees who are absent for 90 or fewer days.

Discrimination. A reemployed employee may not be discharged without cause as follows:

• For one year after the date of reemployment if the employee’s period of military service was for 181 days or more.
• For six months after the date of reemployment if the employee’s period of military service was for 31 to 180 days.

Employees who serve for 30 or fewer days are not protected from discharge without cause. However, they are protected from discrimination because of military service or obligation.

Employment discrimination because of past, current, or future military obligations is prohibited. The ban is broad, extending to most areas of employment, including:

• Hiring,
• Promotion,
• Reemployment,
• Termination, and
• Benefits.

If an employee’s past, present, or future connection with the service is a motivating factor in an employer’s adverse employment action against the employee, the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of the employee’s connection with the service. The employer has the burden of proof once a prima facie case is established.

Liability is possible when service connection is just one of an employer’s reasons for the action. To avoid liability, the employer must prove that a reason other than service connection would have been sufficient to justify its action.

Both the standard and burden of proof apply to all cases, regardless of the date of the cause of action, including discrimination cases arising under the predecessor (VRR) law.

Employers are prohibited from retaliating against anyone:

• Who files a complaint under the law;
• Who testifies, assists or otherwise participates in an investigation or proceeding under the law; or
• Who exercises any right provided under the law.

These provisions apply whether or not the employee has performed military service.

Enforcement. The Secretary of Labor is empowered to issue regulations implementing the USERRA. Certain publications issued by the Department of Labor had been accorded “a measure of weight” by the courts.

VETS investigates complaints and attempts to resolve them. Filing of complaints with VETS is optional. If resolution is unsuccessful following an investigation, the service member may have the claim referred to the Department of Justice for consideration of representation in the appropriate District Court, at no cost to the claimant.

The law gives VETS rights:

• Of access to examine and duplicate employer and employee documents that it considers relevant to an investigation,
• Of reasonable access to interview persons with information relevant to the investigation, and
• To subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation.

Employees whose complaints are not successfully resolved by VETS may request that their complaints be submitted to the Attorney General for possible court action. If the Attorney General is satisfied that a complaint is meritorious, the Attorney General may file a court action on the complainant’s behalf.

Individuals continue to have the option to privately file court actions. They may do so if they have chosen not to file a complaint with VETS, have chosen not to request that VETS refer their complaint to the Attorney General, or have been refused representation by the Attorney General.

If violations under USERRA are shown to be willful, the court may award liquidated damages. Award of back pay or lost benefits may be doubled in cases where violations of the law are found to be willful. “Willful” is not defined in the law, but the law’s legislative history indicates the same definition that the U.S. Supreme Court has adopted for cases under the Age Discrimination in Employment Act should be used. Under that definition, a violation is willful if the employer’s conduct was knowingly or recklessly in disregard of the law.

The law, at the court’s discretion, allows for awards of attorney fees, expert witness fees, and other litigation expenses to successful plaintiffs who retain private counsel. Also, the law bans charging of court fees or costs against anyone who brings suit.

Only persons claiming rights under the law may bring lawsuits. According to the law’s legislative history, its purpose is to prevent employers, pension plans, or unions from filing actions for declaratory judgments to determine potential claims of employees.