“In all the jurisdictions I’ve practiced in, the general reaction to leave issues is bewilderment,” says Attorney Matthew Effland. In a recent presentation at SHRM’s Annual Conference and Exposition in Chicago, Effland clarified the particularly confusing issue of military leave.
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Effland, a shareholder at the Indianapolis office of Ogletree Deakins PC, says that USERRA (Uniformed Services Employment and Reemployment Rights Act) offers two essential rights, the right to take leave, and the right to return. The basics of the law are:
- Coverage: Virtually all employers, regardless of the number of employees.
- Eligibility: Virtually all employees who perform “service in the uniformed services”
- “Uniformed services” means Army, Navy, Air Force, Marines, Coast Guard, reserves of those branches, Army and Air National Guard, and others designated by the president in time of war or national emergency.
- “Service in the uniformed services” means:
- Active duty,
- Active duty for training,
- Inactive duty training (such as drills),
- Initial active duty training,
- Funeral honors duty performed by the National Guard and reserve members, and
- Fitness for duty examinations.
- Employee protections include:
- Reinstatement rights;
- Prompt reemployment;
- Retraining, if necessary, for example, to regain an expired license or to be trained on upgrades in systems (the burden is on the employer to provide this);
- Reasonable accommodations for injuries/aggravations;
- Seniority/benefit accrual while on leave;
- Protection from discrimination based on military service; and
- Employers required to show “cause” for terminations occurring up to a year after return from service, depending on length of leave. (Employment at will is “out the window,” says Effland, but you can still terminate for cause.)
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- Employer protections include:
- Notice required unless “impossible, unreasonable, or precluded by military necessity.”
- Five- (5) year cumulative limit on protected leave; however, a number of exceptions apply.
- Undue hardship defense to reinstatement (but this is a fairly tough standard—tighter than Title VII or the Americans with Disabilities Act).
- Reinstatement not required where prior employment was for a brief, nonrecurrent period.
- Right to documentation for leave of 30-plus days.
- Notice Requirements:
- Employer to post “Your Rights Under USERRA.”
- Employee strongly suggested to give 30 days’ notice prior to leave but not specifically required (no notice if impossible or by military necessity).
- Employee to notify of intent to return
- Up to 30 days of service: within 8 hours;
- 31 to 180 days: within 14 days;
- 181+ days: up to 90 days after service; or
- Extended up to 2 years for servicemembers who are hospitalized or convalescing.
- Reinstatement Rights:
- Return to the position that would have been achieved if the employee had not gone on leave (“the “escalator” position);
- If the escalator position is not available, return to the same position or similar position as previously held, depending on length of leave involved;
- Retraining required if necessary; or
- Reasonable accommodations required for employees injured or with aggravated prior conditions resulting from military service.
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Common Pitfalls
Effland cites the following common problems he sees:
- Overlooking accommodations beyond the ADA:
- Where the impairment may not be an ADA “disability.”
- Where more affirmative action is required by the employer such as retraining.
- Insufficient claims of undue hardship.
- Failing to count USERRA-covered leave as days worked for FMLA eligibility.
- Overlooking state laws. All 50 states have some protections for military leave— check yours!
- Misunderstanding length of leave rules.
- The cumulative leave from employment for military leave may not exceed 5 years.
- Most service will be accumulated toward the 5-year maximum.
- This is a single employer accumulation. Leaves from multiple employers are not aggregated.
In tomorrow’s Advisor, two of Effland’s case studies on military leave plus an introduction to the guide many call “The FMLA Bible.”