Military Leave Refresher for Employers

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As the military conflict in the Middle East continues and some Marine reservists have reportedly been deployed to the region, it is important for employers to revisit compliance obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The law provides reemployment protection and other benefits for workers who take leave to perform military service. 

Covered Employers and Employees

USERRA applies to all U.S. employers regardless of size. Its protections cover all employees—even if they are temporary, part-time, probationary, or seasonal—but not independent contractors.

Employee Notice Obligation

USERRA generally requires an employee to notify the employer of the need for military leave. The employee should provide notice as far in advance as is reasonable under the circumstances. The notice may be verbal or written and does not need to follow any particular format. The employee is not required to ask or get his or her employer’s permission to leave to perform service—even when the employee’s extended absence may significantly impact operations—and the employee does not need to announce his or her intention to seek reemployment at the time of deployment.

Documentation

An employer may not require the employee to provide written orders or other official documentation before approving military leave. However, an employer can require documentation supporting the employee’s uniformed service where an employee’s “period of service exceeded 30 days” and the employee seeks reemployment.

Reemployment After Leave

One of the key protections for covered employees under USERRA is the right to reemployment in the civilian job upon the conclusion of service. To qualify, employees must have taken no more than five total years of military absences with the same employer; received an honorable or non-punitive discharge; and sought to return to their civilian job within a certain time frame (as described below).

Timely Return

To qualify for USERRA’s protections, a service member must generally apply for reemployment within certain time limits, which vary depending on the length of the service:

• For service of 30 days or less, the employee must apply for reemployment no later than the first full calendar day following military service.
• For service of 31 to 180 days, the employee must apply for reemployment no later than 14 days after completing service. 
• For service of 180 or more days, the employee must apply for reemployment no later than 90 days after completing service.

Return to Work

Under USERRA’s “escalator” principle, employers must place returning veterans in the position they would have occupied with reasonable certainty if they had remained continuously employed, with full seniority. This means that if an employee on military leave would have moved up in pay or position if not on leave, he or she would need to be returned to the position they would have held had the leave not been taken.

Prompt Reemployment

USERRA requires “prompt” reemployment of an employee returning from military leave. Depending on the circumstances, in most cases “reemployment must occur within two weeks of the employee's application for reemployment.”

Disability Incurred During Service

Employers must go beyond the requirements of the Americans with Disabilities Act when accommodating a returning employee who has a disability incurred in, or aggravated during, the period of service. For example, employers may need to train or retrain an employee to qualify him or her for the duties of a position that is equivalent in seniority, pay, and status to the employee’s escalator position, or a position that is the “nearest approximation” to such equivalent position.

Health Insurance Protection

USERRA allows service members to elect whether to continue with their existing employer-based health insurance plan for up to 24 months while in the military. The law also allows service members to rejoin their employer’s health plan upon returning to work, without any waiting periods or exclusions, except for illnesses or injuries related to the military service.

State and Local Laws

Keep in mind that some state and local laws may provide for greater benefits for employees returning from military service beyond what is required under USERRA. So consult all applicable laws to ensure full compliance with military leave requirements.

To find out more about these requirements, contact any member of the Maynard Nexsen Labor & Employment Group.