There are two primary laws that will come to bear, the Uniformed Services Employment and Reemployment Rights Act (USERRA), the subject of this article, and Family and Medical Leave Act (FMLA), the subject of a future article.
Besides those legal responsibilities, many employers will also consider that they have a broader ethical obligation to those who have fought to protect our country and their families.
Basic Requirements of USERRA
Application. USERRA, which applies to all employers regardless of size, prohibits you from discriminating or retaliating against employees or applicants because of their past, present, or future military service.
Coverage. USERRA covers all employees who perform duty in a uniformed service on a voluntary or involuntary basis, including active duty, active duty training, inactive duty training, full-time National Guard duty, and absence from employment for an examination to determine fitness for duty.
Eligibility. Generally, all employees who enter military service are entitled to USERRA protections and reemployment with their preservice employer if they comply with the terms of the statute. Note in particular:
• Temporary, part-time, probationary, and seasonal employees are protected.
• Employees in management, executive, or professional positions are also protected.
• Independent contractors are not covered under the Act.
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However, USERRA specifically provides that you are not required to reemploy someone if his or her employment before military service was for a brief, nonrecurrent period and there was no reasonable expectation that the job would continue indefinitely.
No hours or status requirements. Because nearly all employees serving in some capacity in the armed forces are protected by USERRA, there are no hours or status requirements to consider when establishing eligibility requirements for military leave and reinstatement upon return. Even laid-off employees, workers on strike, or employees on leaves of absence are covered under USERRA. If an employee has no recall rights, however, he or she isn’t entitled to reemployment.
No better position. However, USERRA will not put employees in a better position than they would have been in had they not participated in military service.
USERRA Notice Obligations
All employees must provide notice of their impending military leave, either in writing or orally. Notice may be provided by the employee or by an appropriate officer of the branch of military in which she will be serving. However, the employee isn’t required to provide notice if military necessity prevents it or if giving notice is otherwise impossible or unreasonable.
Benefits
If you have a health plan, USERRA requires you to offer continuous coverage for up to 24 months to employees who are absent because of military service. The health plan may not require the employee to pay more than his or her share for medical coverage if the period of military service doesn’t exceed 31 days. If the service goes beyond 31 days, you may require the employee to pay up to 102 percent of the full premium under the plan.
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Upon reemployment, employees are entitled to the seniority and seniority-based benefits they had at the beginning of their military service, plus any additional seniority and benefits they would have attained with reasonable certainty had they remained continuously employed.
For benefits that aren’t based on seniority, you must treat returning service members at least as well as employees returning from other types of leave.
You must count the time the employee would have worked had he or she been employed continuously toward her FMLA eligibility.
In tomorrow’s Advisor, in’s and out’s of reemployment rights for returning vets, plus an introduction to the all-in-one site for HR and compensation managers, HR.BLR.com.