In Honor of Memorial Day, a USERRA Primer

Memorial Day signals the beginning of summer. Here in Minnesota, lake-goers open their cabins and put out their docks, and families gather for backyard cookouts. For many, Memorial Day has special meaning as we remember those who died in military service in our country’s armed forces. In honor of Memorial Day, we take a look at USERRA and other laws that afford legal protections to service members, veterans, and their families.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides reemployment rights to persons who must be absent from their jobs because of “service in the uniformed services.” The U.S. Department of Labor has created a handy pocket guide that summarizes the USERRA’s protections and the respective obligations of employers and employees.

USERRA defines “service in the uniformed service” to mean performance of duty on a voluntary or involuntary basis for the U.S. Army, Navy, Marine Corps, Air Force, Coast Guard, Reserves, Army National Guard or Air National Guard, Commissioned Corps of the Public Health Service, and “any other category of persons designated by the President in time of war or emergency.” Types of service covered by USERRA include:

• Active duty and active duty for training;
• Initial active duty for training;
• Inactive duty training;
• Full-time National Guard duty;
• Absence from work for an examination to determine a persons’ fitness for any of the above types of duty;
• Funeral honors performed by National Guard or Reserve members; and
• Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which may be activated for a public health emergency, including training to prepare for such service.

USERRA applies to all employers, public or private, with one or more employees. Employees covered by USERRA are entitled to leave for military service and reemployment rights when they return. USERRA provides a military leave entitlement for a cumulative period of five years, but there are some types of service that qualify an eligible employee for military leave and do not count toward the five-year cap. Examples of this include initial periods of obligated service—like for the Navy’s nuclear power program—that are longer than five years. Required training for Reservists and National Guard members are also not counted toward the five-year limitation.

Employers sometimes question whether they have to permit an employee to take military leave, which can be burdensome given the law’s five-year leave period and reemployment obligations. USERRA leave is, however, a legal entitlement that is mandatory for employers. If the employee is entitled to the leave under USERRA’s terms, the employer must grant it. Under some circumstances, an employer may make a request to the employee’s military officer to have the employee rescheduled for a different training or the like, but again, whether or not the employee gets to take leave is generally out of the employer’s hands.

While on USERRA leave, employees have certain continuation of benefits rights that the law discusses in detail. Also, service members are entitled to use paid vacation or PTO to cover a portion of their leave, but cannot be required to do so.

Another unique aspect of USERRA is the reemployment rights it affords employees returning from military leave. Employees have more than a right of return to the same or similar position. USERRA includes an “escalator principle” that requires that an employee be placed in the position he/she would have had if not absent on military leave. For example, if there is a “reasonable certainty” that a person would have been promoted during the period of absence, he or she must be placed in the more senior position upon return. Employers are obligated to make reasonable efforts to qualify the returning service member for the more advanced position by providing training or other support.

USERRA does place certain notification obligations on employees, both with respect to taking leave and returning to work. These time limits vary depending on the length of military leave. In addition, USERRA allows employers to obtain documentation, to the extent available, corroborating the employee’s need for leave.

Apart from USERRA, the federal Family and Medical Leave Act (FMLA) provides leave protections for family members of service members in certain situations. FMLA entitles eligible employees to take time off to take care of various personal matters in the event of a covered family member’s foreign deployment (e.g. “qualifying exigency” leave). The FMLA also affords leave of up to 26 weeks to care for a covered service member who became ill or injured in the course of duty or who has a serious health condition that was exacerbated in the line of duty.

Employers should also be mindful of laws, including but not limited to USERRA, that prohibit discrimination in employment based on an applicant or employee’s military service or veteran status. Also, many states have their own military or other leave laws that afford protection to service members and/or their family members under certain situations.

To all of our readers, we wish you a delightful holiday weekend. To all military service members, veterans, and their families, we sincerely thank you for your service.