Ask the Expert: Benefits Continuation Rules for Employee on Military Leave

Question: We have an employee who will be leaving for active duty for just about one year. What is the requirement under USERRA for continuing employee benefits?

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Answer from the experts at HR.BLR.com:

During a period of service in the uniformed services, the employee is deemed to be on furlough or leave of absence. In this status, the employee is entitled to the nonseniority rights and benefits generally provided by the employer to other employees with similar seniority, status, and pay who are on furlough or leave of absence.

The employee is entitled to nonseniority rights and benefits that the employer provides to similarly situated employees by an employment contract, agreement, policy, practice, or plan in effect at the employee’s workplace. These rights and benefits include those in effect at the beginning of the employee’s employment and those established after employment began.

They also include those rights and benefits that become effective during the employee’s period of service and that are provided to similarly situated employees on comparable periods of furlough or leave of absence.

Note: If the employee knowingly provides written notice of intent not to return to the position of employment after service in the uniformed services, he or she is not entitled to nonseniority rights and benefits. The employee’s written notice does not waive entitlement to any other rights to which he or she is entitled under the Act, including the right to reemployment after service.

The Veterans Benefits Improvement Act (VBIA), which amended USERRA, requires that employers offer those on military leave and their dependents the right to continue in the group health plan for up to 24 months of service.

Employees may be required to pay 102 percent of the full premium for insurance, except if the employee is on leave for 31 days or less, then the employee may not be charged more than the amount he or she would have paid if still employed (38 USC 4317(a)(1)(b)). Upon reemployment, an employee and his or her family may reenter the employer’s health plan.