After Iraq: Obligations to Your Returning Military Employees

How Long Does USERRA Protect Employees on Military Leave?

Employees are entitled to USERRA protection if the cumulative length of all military leave with the employer does not exceed 5 years, not including certain periods of service such as training in the Reserves and National Guard and service during a time of war or national emergency.

Are Employers Obligated to Pay Employees During Military Leave?

Employers are not obligated to pay employees during a period of military leave, though some employers opt to provide differential pay as a show of support.

Are Employers Obligated to Provide Benefits?

Employees on military leave are entitled to the same benefits from their employers as provided to any other employee on a leave of absence having similar seniority, status and pay. Employees may elect, but cannot be required, to use paid vacation or leave they accrued prior to leave in lieu of unpaid status during military leave. Following re-employment, employees are entitled to those seniority-based benefits they accrued prior to military service and would have attained had they remained actively employed.

Upon re-employment, employers become liable for employer-funded pension contributions to the same extent such contributions were made for active employees during the employees' military leave, and for benefits dependent on employee contributions or elective deferrals to the extent employees make the necessary contributions or deferrals within a period equal to three times their military leave, not to exceed 5 years.

Employees on military leave and their eligible dependents are entitled to continued health insurance benefits at the normal employee rate during the first 31 days of service and thereafter entirely at their own cost under USERRA and the Consolidated Omnibus Budget and Reconciliation Act of 1985. Upon re-employment, USERRA provides for employees and their eligible dependents' re-entrance into employers' health care plans without common exclusions or waiting periods.

Must Employers Re-employ Those Returning from Service?

USERRA generally obligates employers to re-employ individuals absent on military leave following their return from service unless released under dishonorable conditions or except where 'circumstances have so changed as to make re-employment impossible or unreasonable,' such as where reinstatement would force the employer to create a useless job, or a reduction in the work force occurred that would reasonably have included the veteran.

Is There a Deadline by Which Employees Must Apply for Re-employment?

Where military service is less than 31 days or leave is taken for a fitness examination, employees must report to their employer no later than the beginning of the first regularly scheduled work period on the first full calendar day following the completion of service, exclusive of an 8-hour rest period plus transportation time. Where military service is between 31 and 180 days, employees have 14 days from the end of their service to apply for re-employment unless impossible or unreasonable. Where military service is over 180 days, employees have 90 days from the end of their service to apply for re-employment.

Employees who are hospitalized or recovering from an illness or injury incurred or aggravated in service must report to the employer at the end of such hospitalization or recuperation, if military service was less than 31 days or for a fitness examination. For all other periods of service, such employees must apply to the employer at the end of their hospitalization or recuperation plus any additional time allowed by employer policies or practices.

Are Employers Obligated to Offer Employees Their Same Positions?

Where military service is less than 91 days, employers must re-employ employees in 'escalator positions, ie, the position they would have been at if employment had continued uninterrupted,' including any promotion they would have received with reasonable certainty in the absence of military leave. Where employees are not qualified to perform the duties of the escalator position, employers need only re-employ them in the position they held immediately prior to military service.

If military service is greater than 90 days, employers must re-employ employees in an escalator position or a position of like seniority, status and pay, the duties of which the employees are qualified to perform. If employees are not qualified to perform the duties of either position, employers must make reasonable efforts to qualify them absent an undue hardship. If employees still are not qualified to perform the duties in question after reasonable efforts to qualify them, employers need only re-employ employees in the position they held just prior to military service or, alternatively, a position of like seniority, status and pay, the duties of which they are qualified to perform.

Finally, if employees are disabled due to an injury or the aggravation of a previous injury during military service and, as a result, they are not qualified for the position in which they would have been employed in the absence of military leave, employers must make reasonable efforts to accommodate such employees absent an undue hardship. If employees remain unqualified despite employers' reasonable efforts, employers need only place employees in another position equal in seniority, status and pay or which is the nearest approximation under the circumstances. Where no other position exists other than the one for which employees remain unqualified, employers need not re-employ such employees.

Are Employees Protected from Termination Following Re-employment?

The Act protects employees returning from service from discharge without cause for one year after re-employment where military leave was more than 180 days, and for 180 days after re-employment where military leave was more than 30 days but less than 181 days.

Does the Act Offer Special Protection from Discrimination?

Employers are prohibited under USERRA from discriminating in connection with employment and re-employment based on application for membership or performance in a uniformed service, and from retaliating against the exercise of any rights under the Act.

As the foregoing discussion illustrates, one of the principal goals of the USERRA is to minimize the disruption to the lives of employees who are called to military service. Consistent with this objective, USERRA protects employees on military leave in three main ways: 1) it prohibits employment discrimination based on military service; 2) it protects employees' rights to health and pension benefits; and 3) it ensures employees re-employment upon completion of service. Accordingly, employers with workers who have been called into military service are well advised to recognize the obligations USERRA imposes on their business and to plan as appropriate to meet their responsibilities under this relatively new, but currently timely, statute.

Albert J. Solecki, Jr. is a member, and Lori A. Mazur an associate with Goodwin Procter LLP, Boston.

According to recent reports, approximately 220,000 reservists and National Guard members are on active duty. With the first phase of the Iraqi war at an end, many of these individuals are, or may soon be, returning home. This article answers some of the most frequently asked questions by employers concerning their obligations to employees while they are on military leave as well as when they return to work as civilians. An employer's obligation with respect to these issues is governed by the Uniformed Services and Re-employment Rights Act (USERRA or the Act), 38 U.S.C. ”4301 et seq.

Who Is Covered by USERRA?

USERRA applies to all employers and protects employees on military leave for active duty, training, full-time National Guard duty, fitness examinations, and funeral honors duty.

How Long Does USERRA Protect Employees on Military Leave?

Employees are entitled to USERRA protection if the cumulative length of all military leave with the employer does not exceed 5 years, not including certain periods of service such as training in the Reserves and National Guard and service during a time of war or national emergency.

Are Employers Obligated to Pay Employees During Military Leave?

Employers are not obligated to pay employees during a period of military leave, though some employers opt to provide differential pay as a show of support.

Are Employers Obligated to Provide Benefits?

Employees on military leave are entitled to the same benefits from their employers as provided to any other employee on a leave of absence having similar seniority, status and pay. Employees may elect, but cannot be required, to use paid vacation or leave they accrued prior to leave in lieu of unpaid status during military leave. Following re-employment, employees are entitled to those seniority-based benefits they accrued prior to military service and would have attained had they remained actively employed.

Upon re-employment, employers become liable for employer-funded pension contributions to the same extent such contributions were made for active employees during the employees' military leave, and for benefits dependent on employee contributions or elective deferrals to the extent employees make the necessary contributions or deferrals within a period equal to three times their military leave, not to exceed 5 years.

Employees on military leave and their eligible dependents are entitled to continued health insurance benefits at the normal employee rate during the first 31 days of service and thereafter entirely at their own cost under USERRA and the Consolidated Omnibus Budget and Reconciliation Act of 1985. Upon re-employment, USERRA provides for employees and their eligible dependents' re-entrance into employers' health care plans without common exclusions or waiting periods.

Must Employers Re-employ Those Returning from Service?

USERRA generally obligates employers to re-employ individuals absent on military leave following their return from service unless released under dishonorable conditions or except where 'circumstances have so changed as to make re-employment impossible or unreasonable,' such as where reinstatement would force the employer to create a useless job, or a reduction in the work force occurred that would reasonably have included the veteran.

Is There a Deadline by Which Employees Must Apply for Re-employment?

Where military service is less than 31 days or leave is taken for a fitness examination, employees must report to their employer no later than the beginning of the first regularly scheduled work period on the first full calendar day following the completion of service, exclusive of an 8-hour rest period plus transportation time. Where military service is between 31 and 180 days, employees have 14 days from the end of their service to apply for re-employment unless impossible or unreasonable. Where military service is over 180 days, employees have 90 days from the end of their service to apply for re-employment.

Employees who are hospitalized or recovering from an illness or injury incurred or aggravated in service must report to the employer at the end of such hospitalization or recuperation, if military service was less than 31 days or for a fitness examination. For all other periods of service, such employees must apply to the employer at the end of their hospitalization or recuperation plus any additional time allowed by employer policies or practices.

Are Employers Obligated to Offer Employees Their Same Positions?

Where military service is less than 91 days, employers must re-employ employees in 'escalator positions, ie, the position they would have been at if employment had continued uninterrupted,' including any promotion they would have received with reasonable certainty in the absence of military leave. Where employees are not qualified to perform the duties of the escalator position, employers need only re-employ them in the position they held immediately prior to military service.

If military service is greater than 90 days, employers must re-employ employees in an escalator position or a position of like seniority, status and pay, the duties of which the employees are qualified to perform. If employees are not qualified to perform the duties of either position, employers must make reasonable efforts to qualify them absent an undue hardship. If employees still are not qualified to perform the duties in question after reasonable efforts to qualify them, employers need only re-employ employees in the position they held just prior to military service or, alternatively, a position of like seniority, status and pay, the duties of which they are qualified to perform.

Finally, if employees are disabled due to an injury or the aggravation of a previous injury during military service and, as a result, they are not qualified for the position in which they would have been employed in the absence of military leave, employers must make reasonable efforts to accommodate such employees absent an undue hardship. If employees remain unqualified despite employers' reasonable efforts, employers need only place employees in another position equal in seniority, status and pay or which is the nearest approximation under the circumstances. Where no other position exists other than the one for which employees remain unqualified, employers need not re-employ such employees.

Are Employees Protected from Termination Following Re-employment?

The Act protects employees returning from service from discharge without cause for one year after re-employment where military leave was more than 180 days, and for 180 days after re-employment where military leave was more than 30 days but less than 181 days.

Does the Act Offer Special Protection from Discrimination?

Employers are prohibited under USERRA from discriminating in connection with employment and re-employment based on application for membership or performance in a uniformed service, and from retaliating against the exercise of any rights under the Act.

As the foregoing discussion illustrates, one of the principal goals of the USERRA is to minimize the disruption to the lives of employees who are called to military service. Consistent with this objective, USERRA protects employees on military leave in three main ways: 1) it prohibits employment discrimination based on military service; 2) it protects employees' rights to health and pension benefits; and 3) it ensures employees re-employment upon completion of service. Accordingly, employers with workers who have been called into military service are well advised to recognize the obligations USERRA imposes on their business and to plan as appropriate to meet their responsibilities under this relatively new, but currently timely, statute.

Albert J. Solecki, Jr. is a member, and Lori A. Mazur an associate with Goodwin Procter LLP, Boston.