Chapter 25:
Military Leave:
Employment Rights Under the Uniform Services Employment and
Reemployment Rights Act

Last updated June 2006

1. What type of military duty is protected?

USERRA extends rights and protections to "service in the uniformed services."

"Uniformed services" refers to the U.S. Armed Services (including the Coast Guard), the Army National Guard and the Air National Guard (when engaged in active duty for training, inactive duty training, or fulltime National Guard duty), and the commissioned corps of the Public Health Service.

"Service in the uniformed services" includes the performance of duty on a voluntary or involuntary basis with all types of military training or service. Specifically, this includes service, performed under competent authority, in the nature of active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and the time necessary for a person to be absent from employment for an examination to determine the fitness of the person to perform any of these duties.

Intermittent disaster response service and training un the Department of Homeland Security is also protected duty.

2. Does USERRA mandate that "temporary" jobs be held open as well?

Returning veterans are not eligible for reemployment if the civilian jobs they held prior to military service were for a brief, nonrecurrent period, with no reasonable expectation that the employment would continue indefinitely or for a significant period. That is, even a new employee who joined a firm only days or weeks prior to active military duty is eligible for reemployment, unless the job was not expected to continue.

3. What type of discharge or release from active duty must an individual receive to be covered under USERRA's protections?

The individual must be discharged or released from active duty that is "honorable," or "under honorable conditions."

4. What must an individual do to secure the reemployment rights of USERRA?

The individual must provide advance notice;

The leave must not have exceeded the maximum length of absence and;

The individual must apply for reemployment.

These points are discussed below.

5. Must an employee give advance notice to the employer of the impending service?

The employee or an officer of the service must give the employer advance written or verbal notice of the military service, unless the Secretary of Defense determines that giving notice is precluded by military necessity.

6. What is the maximum length of military service for which USERRA gives reemployment rights?

In general, an employee may serve a total of five years on active duty with statutory protection. However, there are exceptions for training and involuntary active duty extensions. In addition, service beyond five years to complete an initial period of obligated service would also be accepted. Additionally, there is a two year extension for illness or injury that is connected to military leave of absence.

7. What is the period within which an individual on military leave must apply for reemployment?

Uniformed service of less than 31 days

: If the service was less than 31 days, the person must report to the employer for reemployment by the start of the first full regularly scheduled work period on the first day after completion of service, plus at least eight hours after the time when the employee could be safely transported home from the location of the military service. If reporting in within that time period is impossible or unreasonable, then the employee must report in as soon as possible after that eight hour period. Employees whose absence occurs because they are required to undergo examinations to determine their fitness for service must report within this same time period.

Uniformed service of more than 30 days, but less than 181 days
: Individuals whose service lasted between 30 and 180 days must apply for reemployment within 14 days after the completion of service. If that is impossible or unreasonable, the employee must apply for reemployment on the first day that application becomes possible.

Uniformed service of more than 180 days
: Individuals whose service lasted longer than 180 days must apply for reemployment within 90 days after the completion of service.

Service members injured during military leave: The law extends the time limits by up to two years if an individual is hospitalized or convalescing from an illness or injury incurred or aggravated during the military service.

8. Must an employee comply with an employer's request for documentation that the employee is eligible for USERRA's reemployment rights?

He or she must comply with the employer's requests for documentation to establish that the application for reemployment is timely, the military service was for five years or less, and the veteran's discharge was honorable.

9. After uniformed service is completed, what are the specific reemployment rights of the employee?

If an individual is gone less than 91 days, the person must be promptly returned to the position he or she would have attained if no leave had been taken. If the individual is not qualified for the position and cannot become qualified, after reasonable efforts by the employer, the person would be re-employed in the position he or she held prior to leave. The rights of individuals gone more than 91 days are the same, except that a position of like seniority, status and pay may be offered.

A returning individual disabled because of a disability incurred during, or as a result of, a period of uniformed service may no longer qualify to be employed in the position that he or she would have attained if continuously employed, or in the position that he or she left to fulfill uniformed service obligations. If this is so, even after reasonable efforts to accommodate the disability, the individual must be employed promptly in either (1) any position of similar seniority, pay or status for which he or she is qualified or would become qualified with reasonable training efforts by the employer, or (2) in a position that approximates a position of similar seniority, pay and status.

10. What are the health insurance benefit rights of an employee on military service under USERRA?

USERRA mandates that employers must offer employees leaving for military duty, a continuation of benefits including insurance as the employer provides for any non-military leave. These employees and their covered dependants have the option of continuing the health insurance, for up to 24 months starting from the date of the absence for military leave. If the period of military service is less than 31 days, the person may not be required to pay more than the employee's share for that coverage. If the period of service extends past 31 days, the person may be required to pay not more than 102 percent of the full premium under the plan. All employees including covered family members will not have a waiting period or exclusion period when the individual is re-employed. The continuation of health insurance rights under COBRA and USERRA run concurrently. Additionally, the military coverage of Tricare is not a disqualifying COBRA event and is secondary to any employer provided coverage, including COBRA.

11.What are the other benefit protections under USERRA?

Employees on military leave continue to accrue seniority. They may actually accrue a benefit during uniformed service if employees on furloughs or leaves of absences for other reasons accrue such benefits.

For pension benefits, a re-employed person shall be treated as not having incurred a "break in service" with the employer, and each period of military service will constitute "service" with the employer in determining the nonforfeitable and vesting of accrued benefits under the plan. This rule also applies to church and most governmental plans. The rules for federal Thrift Savings Plans are treated independently. Qualified individuals are entitled to vesting credit, accrual of benefits, and employer contributions to funded plans for defined benefit and defined contribution plans for the period the employee is on uniformed service leave of absence.

Employers are required to make, on behalf of returning service members, any contributions to their pensions that the employer would have made if the employee had not been absent for military service.

For contributory plans, which offer benefits only where the employee makes contributions, the returning employee must be allowed to make up missed deferrals or contributions over a period equal to three times the period of military service, but no longer than five years. Employers are required to match any such employee contributions, but are not required to credit the employee with any interest that would have been earned. If there is a need to use the imputed earnings of an employee to calculate pension benefits, a service member's preservice rate of pay will be used. If no fixed rate was in effect, the average earnings of the 12 months immediately preceding military service should be used.

12.What are the retention rights of an employee returning to work after military service?

A re-employed individual may not be discharged, except for cause:

For a period of one year, if the service period was more than 180 days, or

For six months, if the service period was more than 30 days

13. Must employers notify employees of their rights under USERRA?

As of March 10, 2005, employers are required to "provide persons notice of their rights, benefits, and obligations of such persons and, such employers." Posting of such a notice is sufficient.

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