September 11, 2001 and the war on Iraq have forced businesses to examine and confront the complex personnel issues caused by military leaves. State and federal law prohibits discrimination and retaliation because of military service and provides employees with the right to maintain certain benefits and to return to work. As a result, it has now become mandatory for employers to address military leave in their employment policies.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination, retaliation, and harassment in hiring, firing, and other terms and benefits of employment. A benefit of employment is defined very broadly including any privilege, status, or interest of employment such as hours and location of employment, insurance, pay, etc.
With respect to pay and benefits, USERRA does not require paid military leave but obliges an employer to treat military leave as it does other leaves. An employer must provide the same benefits to an employee on military leave as it would any other employee. For instance, if an employee on personal leave continues to accrue vacation, an employee on a military leave can do the same. Regarding pension plans, a period of military leave must be counted when determining benefits accrual and vesting. If an employer makes pension plan contributions, it must make contributions for the employee on military leave when he or she returns. USERRA lays out how the employee’s compensation is calculated for that purpose and sets a deadline for employees to make-up their contributions if they choose. The employee on military leave may also continue health insurance up to 18 months, even if it is available through the military and/or the employer is not subject to COBRA.
USERRA provides that an employee returning from military leave has the right to be employed in the position he left prior to the leave and would have held if it hadn’t been for the military obligation. To be eligible, the employee must have provided as much notice as possible prior to the leave. Written or any other notice is not required if it was not available, if it was precluded by “military necessity,” or was “impossible or unreasonable” to provide. An employee’s USERRA rights may be terminated after five years of cumulative leave, but many types of leave are exempt.
The general rules for the employee’s return to work can be summarized as: (1) for service less than 31 days, the employee must return to work on the first working day following 8 hours of rest; (2) for 30 to 180 days of leave, the employee must report to work within 14 days; and
(3) for leave 181 days or longer, the employee must return to work within 90 days. If the employee fails to meet these requirements, the employer may not automatically deny reemployment but may apply its absentee policies.
USERRA provides rights regarding the length of the employee’s reemployment. Under USERRA, an employee reemployed after 30 to 180 days of military service may not be terminated, except for cause, for 180 days. For military service of 181 days or more, the for cause period is one year.
Cheryl Deshaies is a member of the McLane Law Firm’s Employment Law Group and can be reached at (603) 628-1315 or by email at [email protected]
This article should not be considered to be legal advice. Employers should analyze each employee situation carefully and individually with the assistance of legal counsel.