Berry Moorman

Military/USERRA Leave

Military/USERRA Leave

Uniformed Services Employment and Reemployment Rights Act – Military Leave

All employers should be familiar with the Uniformed Services Employment and Reemployment Rights Act (the “Act“), a federal law enacted in 1994. No employer, private or governmental, profit or non-profit, is exempt from the Act’s coverage.

Military Leave

The Act provides for military leave of absences, reemployment rights and other benefits for eligible employees. Temporary employees may not be covered. The Act also prohibits discrimination against employees based on their military service, and provides enhanced protection for disabled veterans. It clearly establishes that reemployment protection does not depend on the timing, duration, or nature of an individual’s military service.

The Act’s umbrella covers voluntary and involuntary service in a uniformed service. It includes active duty, active duty for training, initial active duty for training, inactive duty training, and full time National Guard duty as well as absences from work for an examination to determine an individual’s fitness for duty. Except during times of war or national emergency, the maximum leave allowed is five years, which includes the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services. The five-year limit does not include service that is required beyond five years to complete an initial period of service.

Subject to other eligibility requirements, an employee is eligible for military leave regardless of length of service with the employer. To be eligible for protected leave, the employee or appropriate military officer must provide advance written or verbal notice to the employer unless giving notice is impossible, unreasonable or precluded by military necessity.

Benefits

While not legally required to do so, employees may use accrued vacation, annual or similar leave while performing military duty. For military service of less than 31 days, the employer must continue the employee’s health care coverage. However, employees must pay their required share of any premiums for that month.

Employees performing military duty in excess of 30 days may elect to continue employer sponsored health care for up to 18 months, at their own expense, which may be up to 102% of the full premium.

With respect to other employment benefits, the Act adopts the “escalator principal” which entitles a returning employee to maintain the same seniority, status and pay, as well as other rights and benefits determined by seniority as if there had been no break in service with the employer. For example, pension plan benefits must be offered to reemployed employees as if no break in employment occurred. Further, the order of layoff and recall is another “perquisite of seniority” to which a returning employee may be entitled. Labor contracts, personnel policies or municipal charters may provide additional or supplemental benefits.

Reemployment Rights

To be eligible for reemployment, the employee must satisfactorily complete military service, be released under honorable conditions and notify the employer of his/her intent to return to work as follows:

  • If the period of service was less than 31 days, the employee must report to work at the beginning of the first work day following completion of the service, taking into account safe travel home plus an eight-hour rest period.
  • If the period of service was more than 30 days but less than 181 days, the employee must report to work no later than 14 days following completion of the service.
  • If the period of service was more than 180 days, the employee must submit an application for reemployment no later than 90 days following completion of the service.

Once reemployed, an employer may not discharge an employee except for cause:

  • For one year after the date of reemployment, if the period of service was more than 180 days; or
  • For 180 days after the date of reemployment, if the period of service was more than 30 days but less than 181.

In rare circumstances, an employer may be able to decline reemployment if it is impossible, unreasonable or causes undue hardship.

Please contact a member of our Employment Group if you have questions about your duties when your employees are called to duty or are returning.