USERRA Explained

What Is the Uniformed Services
Employment and Reemployment Rights Act of 1994?

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects the employment and benefit rights of individuals who voluntarily or involuntarily leave their employment to perform military service. This explanation reflects proposed rules issued by the Department of Labor on Sept. 20, 2004 (20 CFR Part 1002, '1002.1, et seq.) and the Veterans Benefits Improvement Act of 2004 enacted on Dec. 10, 2004.

Which Employers Must Comply with USERRA?

USERRA applies to all public and private employers regardless of size. USERRA also applies to foreign employers doing business in the United States and to U.S. corporations doing business in foreign countries (directly or indirectly). ['1002.34]

Employer also includes a “successor-in-interest” even though such successor-in-interest was not aware of the military leave at the time of the merger, acquisition, or other form of succession. An employer is considered a successor-in-interest when there is a substantial continuity in operations, facilities and workforce from the former employer. A determination of successor-in-interest status is made on a case-by-case basis. [''1002.35 and 36]

The term employer also includes a person or entity that has control over employment opportunities. This includes the delegation of the performance of employment-related responsibilities. Therefore, an employer may be jointly liable for an employee on qualifying military leave. For example, if an employee works for a security company and is assigned to a worksite, both the security company and the worksite owner are responsible for USERRA compliance. ['1002.37]

Note: As a result of the successor-in-interest and joint liability rules, a person or entity may be considered an employer under USERRA with respect to a particular individual even though such individual might not otherwise be considered an employee.

What Is Qualifying Military Service?

Military service includes all categories of military training performed on a voluntary or involuntary basis and applies to all individuals serving in active components of the Armed Forces. ['1002.6] Military service includes service in the commissioned corps of the Public Health Service, service as a cadet or midshipman at a service academy, and any other category that the President may designate during a period of war or national emergency. [''1002.58, 59 and 60]

Military service includes services performed as an intermittent disaster-response appointee under the National Disaster Medical System or participation in an authorized training program even if the employee is not a member of the uniformed services. ['1002.56]

Military service does not include service with the National Guard under authority of state law. It only includes National Guard service subject to federal authority. Many states have laws protecting individuals on state authorized National Guard duty. ['1002.57] Employers should be aware of state law requirements.

Is the Employee a Covered Employee?

The term “employee” includes temporary, part-time, probationary or seasonal employees. However, the term employee does not include individuals hired for a brief non-recurrent period if there was no reasonable expectation that such employment would have continued indefinitely or for a significant period. ['1002.41]

Employees who are laid off with recall rights, on strike or on a leave of absence are employees for USERRA purposes. Employees who receive recall notices while on military leave and who do not respond to the notice are still considered employees and have reemployment rights under USERRA. If an employee is laid off before or during military leave without any recall rights, then such employee is not a covered employee. ['1002.42] Independent contractors are not covered employees.

Note: An individual may be considered an employee under USERRA even though such individual might not otherwise be considered an employee (eg, in those situations when an employer has joint liability with respect to such individual). When an individual leaves on military leave, the employer must carefully determine if the individual is a covered employee for USERRA purposes.

Who is Eligible?

Generally, employees absent due to service in the uniformed services are eligible for USERRA benefit and reemployment rights if the employee:

1. Provides the employer with advance notice of military leave;

2. Has 5 years or less of cumulative military service while employed by the same employer;

3. Returns to work or applies for reemployment on a timely basis; and

4. Has not separated from military service with a disqualifying discharge or under other than honorable circumstances. ['1002.32]

What is Advance Notice?

An employee must provide verbal or written advance notice to the employer in advance of the military leave. Advance notice does not need to follow any particular format. Advance notice is not required if it is prevented by military necessity or is otherwise impossible or unreasonable under the circumstances. ['1002.32]

What Should An Employer Do When an
Employee Leaves for Military Service?

When an employee leaves for military service, the employer should determine:

1. If the military service satisfies the requirements under USERRA;

2. If the employee is a covered employee;

3. If the employee has met the eligibility requirements under USERRA;

4. If the leave for military service is comparable to other employer-approved leaves for similarly situated employees; and

5. The anticipated length of the employee's leave.

If the leave is covered under USERRA, then the employer should:

1. Indicate in the employee's personnel file when the military leave begins;

2. With respect to a defined contribution plan, notify the third party administrator to prevent a break-in-service or the default of any plan loan;

3. With respect to a defined benefit plan, notify the plan's actuary to prevent a break-in-service;

4. With respect to health insurance, either continue coverage or offer continuation coverage depending on the anticipated length of leave; and

5. If necessary, modify the provisions of the employer's military leave policy so that it is as generous as other forms of leave (eg, family and medical leave) for similarly situated employees.

What Health Coverage Is an Employee
Entitled to During Military Leave?

An employee taking a leave of absence for military service is entitled to elect health continuation coverage for 18 months (24 months for elections on or after Dec. 10, 2004), or if earlier, until the date the employee fails to return to work or apply for reemployment on a timely basis. The plan sponsor must develop reasonable policies and procedures for electing continuation health coverage. The maximum premium that the employee may be required to pay depends on the length of leave as follows:

1. If the leave is less than 31 days, the employee may not be required to pay more than the regular employee share; and

2. If the leave is for 31 or more days, the employee may not be required to pay more than 102% of the full premium. [''1002.164, 165 and 166]

Note: Continuation coverage under USERRA is alternative coverage for purposes of the COBRA continuation coverage requirements. Therefore, employees electing USERRA continuation coverage are not entitled to COBRA continuation coverage. In accordance with the COBRA continuation coverage requirements, employers must provide employees with a COBRA notice when they experience a qualifying event (eg, when they leave for military service if it would cause a loss of health coverage). Employees should also receive an explanation that the USERRA coverage is alternative coverage under COBRA, and that they are not entitled to COBRA continuation coverage when they elect USERRA coverage.

What Does An Employee Returning
From Military Leave Need to Do?

An employee returning from military leave must:

1. Notify the pre-service employer by reporting to work or submitting an application on a timely basis.

2. If the military service exceeds 30 days, submit documentation upon employer request to show that the reemployment application is timely, the employee has not exceeded the 5-year limit, and separation from military service was not disqualifying. [''1002.115 and 121]

Note: The employer may not delay or deny reemployment by requesting documentation that does not exist or that is difficult to obtain. ['1002.122]

What Is A Timely Application for Reemployment?

Timely application depends on the length of service. If the period of service is:

1. Less than 31 days (or for a period of any length for a fitness examination), the employee must report back no later than the beginning of the first full regularly scheduled work period on the first full calendar day following completion of military service. If it is impossible or unreasonable for an employee to report within this timeframe, then the employee must report as soon as possible following the expiration of the 8-hour period after a period allowing for safe transportation.

2. More than 30 days but less than 180 days, the employee must submit a written or verbal application within 14 days after the period of military service ends. If it is impossible or unreasonable for an employee to report within this timeframe, then the employee must submit the application no later than the next full calendar day after it becomes possible to submit an application.

3. More than 180 days, the employee must submit a written or verbal application within 90 days after the period of military service ends. ['1002.115]

Note: An employee who is hospitalized or is recuperating from an illness or injury incurred or aggravated during military service must report or submit an application for reemployment at the end of the period needed to recuperate from the illness or injury. This period may not exceed two years unless additional time is needed due to circumstances beyond the employee's control and it would make reporting within such timeframe impossible or unreasonable. ['1002.116]

Note: An employee returning from military service may seek employment with another employer and still retain his reemployment rights with the pre-service employer if he timely files his application with the pre-service employer. [''1002.120]

What Is Appropriate Documentation?

Documentation that separation or dismissal from military service was not disqualifying includes the following:

1. Copy of DD (Department of Defense) Form 214, Certificate of Release or Discharge from Active Duty;

2. Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service;

3. Letter from the commanding officer of a Personal Support Activity or someone of comparable authority;

4. Certificate of completion from military training school;

5. Discharge certificate showing character of service; and

6. Copy of extracts from payroll documents showing the period of military service. ['1002.123]

What Should an Employer Do When an
Employee Returns from Military Leave?

When an employee returns from military leave, the employer should:

1 Determine the employee's reemployment position;