Laws You Should Know, USERRA

03/05/07

With over a million Americans in the National Guard or military reserve units, it’s a good bet HR people will have to face issues regarding military leave in the coming months.

Here’s a quick look at the major components of USERRA, the Uniformed Services Employment and Reemployment Rights Act. This act protects the jobs and employment rights of those who need leave for routine training or who are called up to serve in times of national crisis. Note: The following provisions apply to all employers, no matter how large or small. Moreover, be aware that state laws regarding military leave may require more expansive coverage.

Among the main points of USERRA:

1. You must give people military leave. Employers must excuse employees in the guard or reserves to attend training or to join units called up for active duty. Your people must give you advance notice “unless precluded by military necessity.”
2. You’re not required to pay people on military leave. A federal law, USERRA doesn’t require employers to pay employees on military leave. Your state may require otherwise. Alabama, for example, requires employers to grant up to twenty-one days paid leave to those on duty. Note: Many employers make up the difference between an employee’s salary or wages and his or her military pay.
3. You must continue health benefits for at least thirty days under the same terms as if the employee were still on staff. After thirty days, you need not pay for coverage. But you must give employees the COBRA-like option to pay for continuing health benefits for up to eighteen months. You can charge the employee 102 percent of the cost of the premium. When employees return, you must restore coverage in full with no waiting periods and no penalty for nonservice-related preexisting conditions.
4. You’re not required to let vacation and sick days accrue while employees are on military leave. However, you must allow paid time off to accrue if your policies for those on other kinds of leave (FMLA, etc.) permit them to continue accruing time off. (You must also continue nonseniority-based benefits—like sharing in a bonus pool—if those on other kinds of leave continue to receive them.)
5. You may not force people to use vacation benefits while on military leave. Employees, however, may choose to use them.
6. You must give people on military leave their jobs back. This is the main point of USERRA—the reinstatement of jobs once military duty has been completed. While the law has a few wrinkles, employers must at the least give those on leave their jobs back (or one like it if they are gone longer than ninety days), and provide training if they need it. But if they were in line to receive promotions based on seniority, and if they are qualified or can be made so, then they are entitled to the job they would have had if they had never left.

This is an aspect of what’s called the “escalator principle,” which requires that returning service people step back onto the seniority “escalator” at the point they would occupy if they’d been continuously employed.

7. You must continue pension plans. A reemployed person “must be treated as not having incurred a break in service with the employer maintaining a pension plan.” Employers are, therefore, liable for their contributions to a plan. An employee, however, has to repay his or her own contributions to the plan; they have three times the length of their service (up to five years) to do so.