You may have heard that if an employee asks for leave for military service, you must “hold their job” for them when they return. But it’s more complicated than that. With employees requesting leave for National Guard or Reserve duty during the coronavirus epidemic, you need to know your responsibilities as an employer.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that guarantees employment rights to members of the military, both active and reserve. Employers must protect the rights of service members during the hiring process, in requesting leaves, and in returning from leaves.
The USERRA protects service members by:
- Making sure they are not disadvantaged in their civilian careers after they return from military service
- Allowing them to regain their civilian jobs after service
- Making sure they are not discriminated against by employers because of their service responsibilities
This COVID-19 Impact Fact Sheet answers questions about specific circumstances relating to National Guard and Reserve service during the coronavirus crisis.
What Employees and Employers Are Included?
The USERRA covers almost everyone in the U.S. who is serving or has served in the uniformed services. It covers employees—including part-time and probationary employees—but it doesn’t cover independent contractors, freelancers, or other non-employees who do work for your business. The regulations cover all public and private employers, including the federal government. The U.S. Department of Labor administers this Law through the Veterans’ Employment and Training Service (VETS).
USERRA applies to members of the Armed Services, Reserves, National Guard, and other “Uniformed Services,” including the National Disaster Medical System and the Commissioned Corps of the Public Health Service.
How the USERRA Affects Your Business
Your company must comply with USERRA regulations and give specific rights and protections to employees in military service in three circumstances.
Releasing an Employee for Service
You must release an employee if they give you advance notice that they have been called to military service. The employee doesn’t have to tell you if they want to come back to work after their service, and they don’t forfeit their right to coming back even if they tell you when they are leaving that they don’t plan to return.
Reemploying an Employee After Service
Returning service members keep their USERRA rights for a cumulative period of up to five years of service. There are exceptions to this limit, based on individual circumstances.
An employee who is returning from military service is eligible for reemployment if they meet the following criteria:
- They gave their employer advance notice of their military obligation
- They have been away five years or less because of their military obligation (excluding exemptions)
- They returned to work in a timely manner
- They haven’t received a disqualifying discharge or been discharged under less than honorable circumstances
The returning employee must apply to your company for reemployment within a specific time, depending on their length of military service. If the person was injured or became ill during service, the deadline is extended up to two years.
Then, you must promptly reemploy the person in a specific priority order based on their previous position and qualifications.
Pay and Benefits on Return to Work
The returning service person has specific benefit rights on their return to work:
- Seniority: The person keeps their seniority on their return as if they had not left.
- Pay and Raises: When the person returns to work, you must pay them the pay rate they would have attained, “with reasonable certainty,” if they had continued to work for you during their military leave. You must include any pay raises they would have received during their absence.
- Pension Benefits: The person is treated as not having a break in service for pension plan purposes.
- Vacation Pay: You must count military service time of returning vets toward vacation entitlement. Service members aren’t required to use accrued vacation or annual leave while on military duty.
- Health plan: If your company has a health plan for employees, you must reinstate their coverage when they return to work. If the person has more than 30 days of service, they may elect to continue your employer-sponsored coverage for up to 24 months, but they may be required to pay up to 102% of the full premium.
- Disabled Service Members: If a returning service member is disabled, they have the same reemployment rights as other disabled employees and applicants. You must make reasonable efforts to accommodate the disability so the person can return to work.
These pay and benefits requirements can be complicated. See the U.S. Department of Labor USERRA Advisor elaws for more details.
Hiring Service Members
You can’t refuse to employ a member of the military (including National Guard members or Reservists) because of their military affiliation, performance of service, application for service, or obligation for service. You also can’t withdraw an employment offer because someone is called to military duty.
If a service member files a claim against your business, the claim may come through the U.S Labor Department or a lawsuit. You may be asked to participate in an informal session with an ombudsman. You may not retaliate against or discriminate against an employee who files a claim under the USERRA.
For More Information
This article is a general overview of the USERRA law and your responsibilities as an employer. If you have questions, you can search the Veterans’ Employment and Training Service (VETS) website or contact them at firstname.lastname@example.org or phone: 1-866-4USADOL (1-866-487-2365) or 1-202-693-4770.