Hawaii State Department of Education
Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) Update
As our military personnel (including reservists called to active duty) are preparing to leave for overseas destinations, more of you are finding that your employees are among those troops. It's important to be aware that they have certain rights and protections under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This article highlights some of the rights and protections that employees have during military service and upon reemployment relating to their job and benefits.
Who's covered under USERRA?
USERRA covers employees on "qualified military service," which means service in "uniformed services" while on active or inactive duty, including training periods. Uniformed services include the Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service Commission Corps, and the reserve components of those services as well as training or service in the National Guard or Air National Guard. Most private and government employers are subject to the Act.
To be covered by USERRA, employees must:
Employees' rights and protections
Assuming that the employees satisfy all their obligations, they're afforded the following rights and protections under USERRA:
If you have -- or expect to have -- employees on military duty, you should verify that your qualified plans, welfare plans, and other employee benefit programs comply with USERRA and SSCRA and that your affected employees are made aware of their rights and obligations under those laws.
Reservist Files Lawsuit Against Employer
A US Navy reserve officer has sued Pep Boys, his employer, claiming he was fired for taking time off to serve in the military. He's one of 210,000 reservists called up to active duty, resulting in an increased number of conflicts with civilian employers.
Although in concept USERRA, the employment law protecting reservists and National Guard, may appear straightforward, its reemployment requirements generate many practical questions from even the most experienced HR professionals. Below are a few of them, with answers, from the Military Leave Compliance Kit:
Q: What are the basic criteria that entitle employees to eligibility for USERRA protection?
A: Under USERRA, an employee is entitled to reemployment rights and maintenance of employment benefits only if the person returning from military service meets five eligibility criteria:
Q: Are there time limits for returning employees to report back to work following completion of military service?
A: Yes. The time limits for reporting back to work depend on the length of the returning employee's military service. The longer the service, the greater the length of time for reporting back to work. The reporting time limits are:
Q: Is an employer allowed to fill the position of an employee who is away on military leave, or must the position be held open for the length of that leave?
A: An employer may hire a new employee or transfer an existing employee to perform the work of the employee on military leave. Upon return from military service, however, the returning employee is entitled to reemployment. The position into which a returning employee is reinstated is based on the length of military service. For returning employees whose military service was one to 90 days: the position is the one the person held or would have held had the person remained continuously employed without interruption for military service, so long as the person is qualified to perform the job or can become qualified after reasonable efforts by the employer. Where military service was for 91 or more days, USERRA establishes the following order of priority:
Q: If a company that is going through a RIF decides not to terminate veterans on leave, does USERRA offer any protection for employers against other discrimination actions (e.g., adverse impact for gender)?
A: USERRA does not protect a service member from a bona fide RIF. There is no provision in the Act that would protect an employer that provided such generous treatment to employees serving in the uniformed services from other actions.
Q: What workplace accommodations are required for returning employees who incurred or aggravated disabilities while in military service? What is the relationship of USERRA to the Americans with Disabilities Act (ADA)?
A: The reemployment requirements under USERRA are more generous to employees than the ADA is. The ADA only requires employment of individuals who are qualified to perform the essential functions of a position, while USERRA requires training or retraining of persons returning from military service who are not currently qualified for the position so that they may become qualified. Both laws require the employer to make 'reasonable accommodations' to the returning employee's disabilities.
The following three-part reemployment scheme is required for persons with disabilities incurred or aggravated while in military service:
In addition, the deadline for reinstatement may be extended for up to two years for returning employees who are convalescing due to a disability incurred or aggravated during military service.
Q: Are employers required by USERRA to pay an employee who is on military leave of absence?
A: No. Many employers, however, voluntarily offer differential pay (difference between civilian pay and military pay) or provide a specific number of paid military leave days. Continuation of health insurance for employees on military leaves of absence is treated like COBRA, where the employees may elect to pay for continued coverage. Just as many employers voluntarily compensate employees for military leave, some employers also pay the health insurance premiums for COBRA coverage for a certain period of time or to maintain dependent coverage.
Q: May we require that an employee use other forms of leave, paid or unpaid, for purposes of military service? What if the employee wants to use other leave?
A: USERRA forbids an employer from requiring an employee to use his or her vacation, annual, or similar leave during such period of military service. The employee is permitted, but not required, to request that such military service be counted by the employer as vacation, annual, or similar leave with pay. Some employees, for example, may want to use these other forms of leave as a way of receiving additional compensation where such leave is paid leave.
There are many additional issues at work, such as compensation, benefits, remedies, and a raft of individual state laws, many of which are more restrictive than the federal version.
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