
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.
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