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The Uniformed Services Employment and Reemployment Rights Act (USERRA), provides job protection and rights of reinstatement to employees who participate in the National Guard and Reserve. The National Committee for Employer Support of the Guard and Reserve (ESGR), an agency within the Office of the Assistant Secretary of Defense for Reserve Affairs, operates programs directed toward U.S. employersemployees, and communities to ensure understanding of the role of Reserve component members. ESGR encourages development of employer policies and practices to facilitate employee participation in the Reserve components through a network of volunteers and the ESGR Ombudsman program provides “third party assistance” and informal mediation services to employers and members of the National Guard and Reserve. It works in conjunction with the Veterans‘ Employment and Training Service (VETS), U.S. Department of Labor. Volunteer members are trained to provide assistance in the resolution of employment conflicts that can result from military membership, training, or other service requirements protected under USERRA.

USERRA Questions & Answers:

  1. Is an employee protected from unlawful discrimination by an employer based on military affiliation?

Yes. USERRA provides protections for initial hiring and adverse employment actions by an employer if the action is motivated even in part by the employee’s military service. This protection also extends to those who assist service members or testify in a USERRA investigation.

  1. What are the basic eligibility requirements for job protection under USERRA?

To be protected, a National Guard or Reserve member must have a civilian job, must provide timely notification to the employer of military duty, and must report back to work for reemployment in a timely manner. Reemployment rights are provided even if the civilian job is described as “temporary,” unless the employment was for a brief period with no reasonable expectation of continuance for a significant period of time.

  1. Can an employer refuse to allow an employee to attend scheduled drills or annual training?

No. Employees must be excused from work to attend inactive duty training (drill) or annual training and the employer must reemploy the employee as if he or she has not been absent.

  1. Is there a limit to the amount of active duty an employee can perform and still have reemployment rights?

Yes, there is a 5-year cumulative total of military service an employer is required to support. Not included in that total are: inactive duty training (drills); annual training; involuntary recall to or retention on active duty; voluntary or involuntary active duty in support of a war, national emergency, or certain operational missions; or additional training requirements determined and certified in writing by the Service Secretary, and considered to be necessary for professional development or for completion of skill training or retraining.

  1. When should an employee provide notification of upcoming duty?

Written or oral notification must be made to employers prior to going on duty, unless precluded by military necessity. Employees are highly encouraged to notify their employer of any “window” of anticipated military activity, when application for orders is made, or if notified of possible involuntary recall. Employees should be sensitive to employer scheduling requirements when providing notification and when submitting application to the unit commander for orders. Where possible, an employee should submit requests for orders during calendar

  1. Is prior notice to the employer required for leave of absence for military duty?

Yes. Unless precluded by military necessity, advance notice must be provided either orally or in writing. The context for what constitutes timeliness of notification was not spelled out in detail by Congress under USERRA. However, employees who participate in the National Guard or Reserve should provide their employers as much advance notice as possible. Failure to provide notice could result in a denial of the protection of USERRA.

  1. What are valid military orders?

All written or verbal orders are considered valid when issued by competent military authority. A military member in receipt of official orders is obligated by federal statute to execute them. The recurring requirement to perform inactive duty training (drill) is an example of when written orders may not be formally issued.

  1. Does USERRA apply to “state” military duty or governor call-ups of National Guard members?

No. However, protection for such duty is generally provided by state statutes and in most instances is comparable to protections provided under the USERRA.

  1. When may an employer require an employee to provide documentation of military service?

After periods of military leave of absence for more than 30 days, the employer has the right to request such documentation, which can be used to establish the employee’s basic eligibility for protection under USERRA. All National Guard and Reserve members are encouraged to provide a copy of orders, the annual drill schedule, or other type of documentation to employers as soon as available and, if possible, before the commencement of military duty.

  1. What if the employee cannot provide satisfactory documentation for military service in excess of 30 days?

The employer must promptly reinstate the employee pending its availability. The employer may contact the military unit if necessary.

  1. Can an employer require an employee to apply for military leave of absence or otherwise submit official documentation for approval of military leave of absence?

No. As stated earlier, an employer may not require documentation for notification prior to military duty. Further, an employer does not have a “right of refusal” for military leave of absence, so long as the employee has not exceeded the 5 years of cumulative service provided under USERRA.

  1. Can an employee be required to find someone to cover his or her work period when military duty interrupts the work schedule?

No, an employee is responsible for notification but not for altering the work schedule or finding a replacement.

  1. Does an employee have the right to make up periods of work missed due to drill or military leave of absence?

No. An employer may choose to offer an employee the opportunity to work hours missed as a benefit not provided under the USERRA. For example, an employer is not required to provide hours of work for an average 2-week, 80-hour period if part of that period is missed due to military service.

  1. After completion of weekend drill, what is the time limit for an employee to return to work?

The beginning of the next regularly scheduled work period on the first full day following completion of service and expiration of an 8-hour rest period following safe transportation home. For example, an employer cannot require a service member who returns home at 10 p.m. to report to work 2.5 hours later at 12:30 a.m. However, the employer can require the employee to report for the 6 a.m. shift, or scheduled work period, the next morning (after reasonable commute from military duty to home followed by 8-hours). Included in the 8 hour period is time for rest and the commute to work.

  1. What is the time limit for an employee to return to work after Annual Training or other types of extended military leave of absence?

Time limits for returning to work depend on the duration of the orders. The rules are:

  • Service of 1 to 30 days: the beginning of the next regularly scheduled work period on the first full day following completion of service and expiration of an 8-hour rest period following safe transportation home.
  • Service of 31 to 180 days: application for reinstatement must be submitted not later than 14 days after completion of military duty.
  • Service of 181 or more days: application for reinstatement must be submitted not later than 90 days after completion of military duty.
  1. What if an employee does not return in a timely manner to work?

The employee is subject to the personnel policies and practices of the employer for unexcused absences.

  1. What if the employee has an accident, is delayed by lack of military transportation, or is otherwise unable to report back in a timely manner?

The employee must report back to work as soon as possible. Unless the delay is through no fault of the employee, he or she is subject to the personnel policies and practices the employer would normally apply to employees with unexcused absences.

  1. What if an employee is injured or incurs a disability during military duty?

The deadline for reinstatement may be extended for up to 2 years for persons who are convalescing due to a disability incurred or aggravated during military service, and employers must make reasonable accommodations for the impairment.

  1. What job position is an employee returned to after military leave of absence?

Except with respect to persons whose disability occurred in or was aggravated by military service, the position into which an employee is reinstated is determined by priority, based on the length of military service. The rules are:

  • Service of 1 to 90 days:
  1. (a) in the job the person would have held had he or she remained continuously employed (possibly a promoted position), so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer, or
  2. (b), if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service.
  • Service of 91 or more days:
  1. (a) same as for service of 1 to 90 days, or a position of like seniority, status and pay, so long as he or she is qualified, or
  2. (b) if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service or which nearly approximates that position.

Note: The reemployment position with the highest priority reflects the “escalator” principle, which requires that a returning service member steps back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed.
USERRA specifies that returning employees must be “promptly reemployed.” What is prompt will depend on individual circumstances. Reinstatement after 3 years on active duty might require two weeks to allow giving notice to an incumbent employee who might have to vacate the position.

  1. How does military service affect employee status or seniority in the workplace?

An employee must be considered not to have been absent from the workplace if the only reason for that absence was service in a uniformed service. A returning employee must be made “whole” by:

  • being allowed to contribute to the pension plan any amount that would have been contributed had the employee not been absent
  • being reinstated with privileges and status the employee earned by length of service (for example, after 3 years with a company an employee may be entitled to accrue more vacation per year, or after 5 years an employee is automatically advanced to a management position.)
  1. What are the rules on contribution to the pension or thrift savings plan for periods of military leave of absence?

Upon reemployment, the employee has 3 times the length of service (not to exceed 5 years) to make payments and the employer is liable to fund any resulting obligation of the plan within the same time frame.

  1. Can an employee contribute to the pension plan when on military leave of absence?

There is no burden under the law for an employer to continue pension contributions while the employee is away from the work site. An employer may choose to offer this benefit.

  1. What are the rules for entitlement to health insurance?

For absence of less than 30 days, benefits continue as if the employee has not been absent. For absence of 31 days or more, coverage stops unless the employee elects to pay for COBRA-like coverage (for a period of up to 24 months). Health insurance must be reinstated the day an employee is reinstated with no waiting period. If the employer cannot put the employee back to work immediately upon application, the health insurance must be restored immediately.

  1. Does an employee accrue vacation or medical/sick days from the employer while on military leave of absence?

No. However, as in the previous question, an employer may choose to offer accrual of vacation or medical/sick days as an additional benefit. An employer is not required under USERRA to provide short term compensation (pay, vacation accrual, etc.) when an employee is not working at the worksite.

  1. Is an employer required to pay an employee who is on military leave of absence?

No. While many employers offer differential pay or a specific number of paid military leave days, an employer is not required to pay an employee on military leave of absence.