Legal Bulletins

In light of the activation of national guard and armed forces reserve units, employers should make sure they understand their obligations to employees and applicants for employment who are members of the "uniformed services". This article is similar to the article we originally posted on this subject in November, 2001.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-33, was enacted to reduce the disadvantages to an individual who needs to be absent from his or her civilian employment to serve in this country's uniformed services. The law applies to all employers in the public and private sectors, including federal employers. USERRA basically requires that (a) after completion of "uniformed service" an employee will be given his or her old job back (or an equivalent job) and (b) upon reemployment, the returning veteran's seniority, pay and benefits must be reinstated at the level they would have been if the employee had continued working for the employer during the period of military service.

Covered Service

The term "uniformed services" means the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or emergency. An employee's service in the uniformed services is protected, regardless of whether it is voluntary or involuntary.

USERRA does not apply to state call-ups of the National Guard for disaster relief, riots, etc. Any protection for such duty must be provided by the laws of the state or territory involved.

Employment Status during Absence

An employee absent due to uniformed service is deemed to be on a leave of absence and is entitled to the same rights the employer provides to other employees on leaves of absence of comparable length. The employer's treatment of persons on military leave must be at least equal to its treatment of employees on any other type of leave (for example, jury duty, educational, disability, etc.). An employer must allow, but may not require, an employee leaving employment for uniformed service to use any accrued vacation or personal days.

Right To Reemployment

USERRA requires all employers, regardless of size, to reemploy a returning veteran if:

• the employer received reasonable advance notice of the need for the uniformed service leave;
  
• the length of the current absence, plus all prior absences for uniformed service, is not greater than five years; and
  
• the returning veteran applies for reemployment within the applicable time period.
  

Reemployment is not required in the following limited circumstances:

• at the time the employee's uniformed service began, he or she was employed in a temporary position and could not reasonably expect that his or her pre-service position would continue for a significant period,
  
• the employee leaves the uniformed services with a dishonorable or bad conduct discharge or under "other than honorable conditions," or
  
• circumstances have changed, making reemployment "unreasonable or impossible." The fact that the position has been filled or no opening exists generally would not excuse the reemployment obligation, but a downsizing which would have included the employee would be sufficient.
  

Time to Apply for Reemployment

The period an individual has to make application for reemployment or report back to work after his or her uniformed service is based on the time spent on such service.

• If service is for less than 31 days, the individual generally must report for work at the "beginning of the first full regularly scheduled working period on the first calendar day following his or her completion of service and the expiration of eight hours after a time for safe transportation back to his or her residence."
  
• An employee with between 31 and 180 days of service must apply for reemployment within fourteen days from completion of his or her service.
  
• An individual with over 180 days of service must apply for reemployment within 90 days after completion of the military service.
  

These time limits are subject to extension where reporting within the specified time is impossible or unreasonable through no fault of the individual. If a returning veteran is hospitalized for, or recovering from, a service-related illness or injury, the above deadlines are measured from the end of the recovery period (not to exceed two years.) USERRA provides that, following periods of military service of 31 days or more, the returning employee must, upon the employer's request, provide documentation that establishes length and character of the service and the timeliness of the application for reemployment. The employee, however, must be reemployed pending the receipt of the documentation, if the documentation does not exist or is not readily available at the time of the employer's request.

An employee who fails to return to work within the prescribed timeframes does not automatically forfeit the right to reemployment, but will be "subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work." 38 U.S.C. § 4312.

Position to which a Returning Employee is Entitled

The determination as to what position must be offered to a returning veteran is based upon both the length of service and, where qualifications are at issue, the nature of the reason why the employee is not considered qualified.

Less than 91 day of service - The employee must be reemployed in the position he or she would have held if he or she had not been absent for uniformed service (the "would have" position). Thus, if the employee's position of record was upgraded during the period of service, USERRA requires that the employee be given the upgraded position. If the employee is not qualified for the upgraded position due to reasons other than service connected disability, the employer must make a reasonable effort to qualify the employee. If unsuccessful, the employee must be reemployed in the position he or she occupied when the period of service commenced (the "position of record").

91 or more days of service - The similar order of priority is followed, except that the employer has the additional option of offering the employee a position of like seniority, status and pay (a "like position"). If the employee is not qualified for either the "would have" position or a "like" position due, again, to any reason other than service connected disability, the employer must offer reemployment in the employee's "position of record" or its own "like position".

If after reasonable efforts, an employee can not qualify (for reasons not due to a service connected disability) for either his or her "would have" position or "position of record," including, where appropriate, "like position" equivalents, then the employer is obligated to reemploy the individual in any position of lesser status and pay that the employee is qualified for, but with full seniority.

Where the employee is no longer qualified for either his or her "would have" position or "position of record" due to a service connected disability, and the disability is not subject to reasonable accommodation, the employee is entitled to reemployment in a position of "equivalent seniority, status and pay" for which he or she is qualified (the "equivalent position"). If reemployment in an "equivalent position" is not possible with or without reasonable accommodation, then the employee must be reemployed in the position that is the nearest approximation to an "equivalent position."

Finally, if the individual would not have had a position if he or she had been continuously employed (for example, due to a layoff or the abolishment of the employee's position), then he or she is not entitled to be reemployed.

Health Insurance

Individuals performing uniformed service of more than 30 days may elect to continue coverage under employer sponsored health care plans for up to 18 months; however, they may be required to pay up to 102 percent of the full premium. For service of less than 31 days, health care coverage is provided as if the individual had remained employed.

USERRA gives an employee and previously covered dependents the right to immediate reinstatement of civilian health insurance coverage upon return to the civilian job. The health plan cannot impose a waiting period and cannot exclude the returning employee based on preexisting conditions (other than for those conditions determined by the federal government to be service-connected). This right is not contingent on an election to continue coverage during the period of service. 38 U.S.C. § 4317.

Retirement Benefits

A returning veteran is entitled to have the period of military service count as service with the employer for vesting and accrual purposes under retirement plans. The employer must allow the returning veteran to make up any missed employee 401(k), 403(b) or after-tax contributions provided for under the employer's plan, and the employer must make up any missed employer contributions (including employer matching contributions based on made-up employee contributions). "Make-up" contributions are not subject to plan contribution limits, and are not required to be included for testing purposes. In addition, repayment of a plan loan may be suspended during the period of uniformed military service if the plan so provides.

Protection against Discharge

An employee who returns from military leave can be discharged only for cause: (a) during the first year of employment after uniformed service of more than 180 days; and (b) during the first 180 days of employment after uniformed service of 31 to 180 days. This provision of USERRA overrides the at-will status that is otherwise applicable to the employee.

Prohibited Discrimination and Retaliation

USERRA has broad anti-discrimination and anti-retaliation provisions that forbid an employer or prospective employer from discriminating with regard to hiring, retention, and promotion, or any benefit of employment because of past, present, or future application for, or membership in a uniformed service. These provisions are violated where the employer's actions are motivated, either in whole in or part, by such discrimination. The protection afforded by these provisions also extends to non-service members who assist another individual in the exercise of rights protected by this statute.

All employers should review their employment policies and employee benefit plan documents to make sure they comply with USERRA.

DOL Web Site

The Department of Labor provides information about USERRA at its web site. For example, see Elaws - USERRA Advisor at http://www.dol.gov/elaws/vets/userra and the Department of Labor Fact Sheet No. OASVET 97-3, entitled Job Rights for Veterans and Reserve Component Members, at http://www.dol.gov/vets/programs/fact/vet97-3.htm