USERRA – A Leave Law Like No Other – Part 2

Posted on: April 25, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Our most recent blog post started our review of USERRA – the Uniformed Services Employment and Reemployment Rights Act.  The requirements of USERRA are surprising compared to other leave laws, but the men and women who have served in the military have earned these job protections.  So although we may wonder at some of the provisions of USERRA, let’s embrace the law.

Documentation upon return to work.  In the introduction to our first USERRA post we noted that “[s]upporting documentation comes at the end of the leave, not the beginning.”  USERRA has no provision requiring the servicemember to provide the employer a copy of military orders or other proof of upcoming service.

When the employee returns and applies for reemployment, however, the employer can request documentation (if the employee who was absent for military service for 31 days or more) that shows:

  • the person’s application for reemployment is timely (that is, within the time limits described in our first post);
  • the person has not exceeded the five-year service limitation; and
  • the person’s separation from service was not under disqualifying circumstances.

Circumstances that disqualify the servicemember from the right to reemployment include dishonorable or bad conduct discharge, separation under other than honorable conditions, and a few other situations. 

However, even if the employee does not provide satisfactory documentation because it is not readily available or does not exist, the employer must still promptly reemploy the servicemember.  If documentation is later provided that fails to support the three conditions above, the employer can terminate the employee without violating USERRA.  Unfortunately, the law is silent about the employer’s options if no documentation is ever provided.

Reemployment position.  The returning servicemember must be reemployed as soon as practicable under the circumstances.  Return after weekend duty or two-week annual training should generally be practicable on the next business day.  Reemployment following 5 years of active duty might take longer due to the need to assess the correct position and possibly give notice to an incumbent in the position the servicemember is entitled to hold. 

Generally, the employee must be reemployed as follows, in order of preference:

  1. In the job the employee would have held if the employee had remained continuously employed
    for the duration of his or her service, including promotions and increased seniority, pay, benefits,
    and duties. This is referred to as the “escalator position.”  The employer must make reasonable
    efforts to help the servicemember become qualified, such as by providing refresher or new training
    for the position. 
  2. If the returning servicemember cannot become qualified for the escalator position, he or
    she can be reemployed in the position held at the commencement of the military service or,
    in cases of service longer than 90 days, in a position of like seniority status and pay.  
  3. If the employee cannot become qualified for either of the above positions, then he or
    she must be placed in the position that is the nearest approximation to the above positions,
    in that order of preference.

The escalator goes down as well as up.  Under the escalator principle the employee may also be placed in a lower position or even laid off (for example, if the company went through reorganization or layoffs during the employee’s military service).

Job protection following return.  USERRA modifies the common rule of at-will employment.  Following reemployment, the servicemember may not be discharged without cause for 180 days if the military service was 31 to 180 days, and for one year if the service was 181 days or more. 

Accrued vacation.  A servicemember must be allowed to use accrued paid vacation (or presumable PTO) during military leave but cannot be required to do so.  The employee does not continue to accrue vacation during military leave, but any rights to vacation based on seniority must be provided upon return.  For example, if an employee’s right to vacation time increases from 2 to 3 weeks based on length of employment and the servicemember crosses that threshold during military service, then upon return the employer must award vacation at the higher amount. 

Health benefits.  An employee on military leave for 30 or fewer days can continue with health benefits coverage by paying the employee’s normal share of the premium.  Otherwise, the employee may elect to continue such coverage by purchasing COBRA during service for up to 24 months (or the period of service and return to work, if shorter) and cannot be required to pay more than 102% of the full premium for the coverage. 

Nondiscrimination.  An applicant or employee cannot be discriminated against in hiring, promotion, termination, or benefits on the basis of past, current, or future military obligations. 

Posting.  All employers must provide employees notice of the rights, benefits and obligations under USERRA.  This can be accomplished by posting or distributing to employees the notice available from the Department of Labor, Your Rights Under USERRA.

Impact of USERRA on FMLA rights.  The Family and Medical Leave Act specifically addresses employee FMLA eligibility for returning servicemembers.  The employee must be credited with length of service and hours that the employee would have worked but for the military service.  So for example, an employee who normally works 40-hour weeks and has been employed for 6 months takes a military leave of absence for 8 months, the employee will be FMLA eligible upon return by combining the length of employment and military service for 14 months; and the hours actually worked with the hours the employee would have worked but for military service (which will clearly exceed 1250). 

Other USERRA provisions.  USERRA contains many additional provisions addressing things such as the special rights of a servicemember who returns with an injury incurred or aggravated during service, the servicemember’s rights under pension plans, and undue hardship as a defense to reemployment of the servicemember.  More information is available in the DOL’s Guide to USERRA, available here.

PINGS FOR EMPLOYERS

As you can see, USERRA indeed has many unexpected provisions and protections for military servicemembers that we don’t see in other leave of absence laws.  

  • Provide the required notice, Your Rights Under USERRA, by posting it where employee
    notices are customarily placed, by handing or mailing out the notice, or distributing the
    notice via electronic mail.
  • Be familiar with USERRA generally to understand that your usual expectations about how
    leave laws operate don’t apply to USERRA.
  • Have resources at hand to address and answer questions (yours and those from the
    servicemember!) when the need arises.
  • Provide servicemembers with information about your company’s benefits available
    to employees who are members of the regular armed forces and Reserve/National Guard units.
  • If you have to fill a servicemember’s employment position during his/her absence,
    understand that you might have to bump the replacement from the position upon
    the servicemember’s return. A long military absence might make this unnecessary
    due to the escalator principle, but be ready. 
  • If you are placing the returning servicemember in the same or a lower position after
    a lengthy absence, be sure you can justify that placement by business factors that take
    into account the escalator principle.

MATRIX CAN HELP!  At Matrix we offer a full suite of leave of absence and disability management tools.  These include management of employer-specific leave plans, as well as FMLA, state leave laws, ADA accommodations, disability plans  . . . and of course, USERRA.  To learn more, ping us at ping@matrixcos.com.

USERRA – A Leave Law Like No Other

Posted on: April 4, 2018 0

 

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

One of my favorite leave law training topics for employers is USERRA – the Uniformed Services Employment  and Reemployment Rights Act.  As the name implies, this is the law that provides job protections for employees who are absent from work to serve in the U.S. Armed Forces (Army, Navy, Air Force, Marines, Coast Guard, National Guard, Reserves, and others).  USERRA also has protections for job applicants and for servicemembers after they have returned to work.    

Why is this a favorite of mine?  Because USERRA turns all of our usual expectations of a leave of absence law upside down.  Trainees are amazed as they learn about USERRA:  Supporting documentation comes at the end of the leave, not the beginning.  The returning employee might be entitled to restoration to a better position than he or she left.  The employer isn’t required to provide the military employee notice of approval of the leave, because it can’t be denied. 

See what I mean?

Now join us on a journey through the world of USERRA, and learn things you never knew before!

Military protections under FMLA vs. USERRA.  The FMLA provides job-protected time off for “qualifying exigencies” for an employee whose family member is a military servicemember. Exigencies include family matters that need immediate attention due to the employee’s family member’s impending or current military service.  In contrast, USERRA provides job protection and other rights to employees who are themselves the military servicemember. 

Covered service-related activities.  Reemployment rights extend to persons who have been absent from a position of employment because of voluntary or involuntary “service in the uniformed services,” including:

  • Active duty and active duty for training
  • Initial active duty for training
  • Inactive duty training
  • Full-time National Guard duty
  • Fitness for duty exams
  • Funeral honors duty
  • Training for and duty performed by intermittent employees of the National Disaster
    Medical System, relating to a public health emergency

Covered employers and eligible employees.  OK, this part is easy.  All employers are covered regardless of size and all servicemember employees are eligible, regardless of length of employment.  The law also provides protections for applicants who have served or are currently in military service. Required employer notice to employees.  All employers are required to provide to persons covered by USERRA notice of their rights, benefits and obligations.  The DOL has a poster “Your Rights Under USERRA” for this purpose which employers may provide by posting it where employee notices are customarily placed, or by handing or mailing out the notice, or distributing the notice by e-mail.  The poster is available here.

Employee notice of military service.  Employees must provide advance notice of military service to their employers.  However, notice may be either written or oral and there is no time frame within which the employee must give notice. And, no notice is required if:

  • Military necessity prevents the giving of notice (for example, if a mission could be
    compromised by public knowledge); or
  • The giving of notice is otherwise impossible or unreasonable.

Duration of job-protected service and leave of absence.  The general duration of job protection is 5 cumulative years of covered military service, but the many exemptions really swallow the rule.  The 5-year limit will not apply when service is due to factors such as:

  • A service obligation that requires a commitment longer than 5 years
  • Voluntary or involuntary service that is ordered or extended due to a war or national emergency
    declared by the President or Congress. This specifically includes many service obligations
    following September 11, 2001, including service relating to the wars in Iraq and Afghanistan.
  • Service by members who are ordered to active duty in support of a “critical mission or requirement”
    of the uniformed services as determined by the Secretary of the military branch involved.
  • Weekend, annual, and other Reserves training.

Pay and benefits during USERRA leave.  USERRA leave is generally unpaid unless the employer has a company policy that provides pay.  More on that later.  

Servicemembers must be allowed, but cannot be required, to use accrued vacation or other paid time off during military service.  Paid time off does not continue to accrue during the military member’s absence from work, but certain rights based on seniority do accrue during military leave.  See the discussion of “reemployment rights” in the second installment of this topic.

The employee can continue health coverage for up to 24 months (or until the end of service, whichever is shorter) after leaving employment for military service.  The employee cannot be required to pay more than 102% of the usual premium. 

Employee’s time limits for reporting back to work.  To qualify for USERRA’s protections, a service member must report to work or apply for reemployment within certain time limits that depend on the duration of a person’s absence for military service.  Employers must allow a longer time if extenuating circumstances prevented timely reporting to work:

Service of 1 to 30 days:  Employee must report to work by the beginning of the first regularly scheduled work period on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an 8-hour rest period.

Following a fitness exam:  Same as for service of 1 to 30 days above, regardless of the length of the person’s absence.

Service of 31 to 180 days:  An application for reemployment must be submitted to the employer no later than 14 days after completion of a person’s service.

Service of 180 or more days:  An application for reemployment must be submitted to the employer no later than 90 days after completion of a person’s military service.

__________________________________________

Watch for our second installment on this topic.  We will take on issues relating to the employee’s return to work such as:  what position the employee gets upon completion of service, exceptions, USERRA interaction with company policies, and our recommended best practices for employers.

MATRIX CAN HELP!  At Matrix we offer a full suite of leave of absence and disability management tools.  These include management of employer-specific leave plans, as well as FMLA, state leave laws, ADA accommodations, disability plans  . . . and of course, USERRA.  To learn more, ping us at ping@matrixcos.com.