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Employer
Obligations for Military Leave
(last updated November 2001)
Return
to Business As Usual? As we all try to cope with the
aftermath of the September 11th tragedy, it
is important for every organization to try to return to “business
as usual.” While this may be possible to a great degree,
there will be changes that most businesses will need to
address.
Employer
Obligations: President Bush has already started calling
up members of the military Reserve. One out of every three
Americans in uniform is a member of the National Guard
or Reserve, making the U.S. extremely dependent upon these
volunteers. It is likely that even more people will volunteer
for such service. Employers need to understand that it
is not enough merely to be “supportive” of their employees
who are called up for service; there are federal and state
laws that mandate certain obligations by employers.
Military
leave under state law includes some non-traditional “military” service.
For example, any call to service in response to a state or
national emergency, including active service in a uniformed
auxiliary, or in the American Red Cross, may qualify.
Reservists
are “Super” Protected: Most employers are accustomed
to laws that require they not discriminate against employees
who take protected leaves of absence. However, under both
state and federal law, the employee who goes on military
leave is “super protected.” While there are some differences
between state and federal law, under federal law the employee
has “special protection” against discharge for between
six and twelve months following return from duty (depending
on length of military service). This “special protection” means
that the employee cannot be terminated except for good
cause. The employer need not rehire an employee returning
from military leave if the employer’s circumstances have
so changed as to make it “impossible” or “unreasonable” to
do so. This is construed very narrowly; the mere fact that
reemploying the individual will be difficult will not meet
this standard. The employer cannot refuse reinstatement
because the individual will require training or that there
are no current openings; the employer may have to “bump” or
layoff another employee in favor of the returning veteran.
Simplified
USERRA: In the wake of the Gulf War, President Clinton
simplified the law somewhat by signing the Uniformed Services
Employment and Reemployment Rights Act (“USERRA”) in 1994.
This statute protects the employment of those who serve
in any military capacity. The basic responsibilities of
employers under USERRA are:
• You
must allow Guard and Reserve members to attend military training,
whether it is mandatory or voluntary.
• You
must restore employees to their previous jobs upon their
return from military duty.
• You
may not refuse to hire persons in the Guard or Reserve because
of their military obligation.
• You
must not fire, demote, or deny promotion or benefits to employees
who exercise their rights to take part in military training.
• You
must grant employees their earned vacations in addition to
any leave for military training they require (i.e., you cannot require
the employee to use available vacation time during the military
leave).
• Employees
who return from military leave are to receive “such seniority,
status, pay and vacation” as they would have enjoyed had
they not taken military leave. The U.S. Supreme Court has
interpreted this as entitling an employee to all benefits
upon return, such as wage and vacation increases and seniority,
that would have automatically been granted if the employee
had not gone on military leave. This is known as the “escalator
principle.”
The “escalator
principle” means the employee will accrue pension benefits
during military leave. The escalator principle does not
require the employer to give entitlements which are commensurate
with compensation for work actually performed. For example,
a returning employee is entitle to resume work at the rate of
vacation which incorporates his or her time served in the
military; however, the reservist is not necessarily entitled
to the actual vacation pay that would have been
earned while s/he was on leave.
Insurance
Benefits are also protected to a certain extent. The
employee has the right to elect continued health
insurance coverage for him/herself and dependents under
COBRA; however, for periods of up to 30 days of training
or service, the employer may only require the person to
pay the normal employee share, if any, of the cost of such
coverage. USERRA gives an employee and previously covered
dependents the right to immediate reinstatement of
civilian health insurance coverage upon return to the civilian
job. New “waiting periods” cannot be imposed, and preexisting
health conditions (other than those determined by the federal
government to be service-connected) cannot be excluded
from coverage. To the extent that an employer offers other
non-seniority benefits (e.g., holiday pay or life insurance),
the employer is required to provide those same benefits
during the military leave. If the employer’s treatment
of employees on leave varies according to the type of leave,
then the most generous treatment must apply to employees
on military leave.
There
are five eligibility criteria for these reemployment
rights. To have these rights, the employee must:
• Hold
a civilian job, including a temporary job; although a job
that is to be held for a brief, nonrecurrent period without
a reasonable expectation of continuing for a significant
period of time will not qualify for protection (Note: State
law does not have this limitation);
• Have
given written or verbal notice to the employer prior to leaving
the job for military training or service, except when precluded
by military necessity;
• Must
not have exceeded the 5-year cumulative limit on periods
of military leave time (most periodic and special reserve
training and any involuntary service performed in time of
emergency will not count toward this 5-year limit;
there are some other circumstances that may also extend this
5-year limit);
• Have
been released from service under conditions other than dishonorable;
and
• Report
back to the civilian job in a timely manner (the time in
which the employee must return will primarily depend on the
length of time the employee was on military leave).
Note
that there is no minimum length of employment before the
employee is eligible for USERRA protections.
Conclusion: Although
USERRA is much simpler than the patchwork of laws it replaced,
the laws regarding military duty still are rather complex.
It is important to get specific information regarding the
entitlements of each employee going on military leave before
taking any actions (other than approving the time off). One
government resource specifically for this purpose is the
National Committee for Employer Support of the Guard and
Reserve (“NCESGR”). You can email NCESGR at ncesgr@ra.osd.mil to request information regarding employer obligations
and the ways in which you can better support the national
defense effort. If you have specific questions, you can
call NCESGR at (800) 336-4590 for assistance. As always,
you can also contact Susan Waag at Waag and Co. with any
questions you may have.
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