Workplace: Implications Of Being Called To Duty

The recent deployment of thousands of troops, and the possibility of more in the near future, has many employers dusting off military leave policies and questioning their responsibilities. When an employee is called to serve, it is often with mixed emotions that an employer bids farewell. On the one hand, there is a sense of pride associated with an employee who takes a military leave to respectfully and bravely help secure our nation. On the other hand, an employer can be left with a substantial void in the business for an unknown duration. This void is particularly difficult for the small business owner who loses a key employee.

So what exactly are an employer’s obligations to employees who are called to serve? Do you have to allow the military leave? Do you have to pay the employee on military leave? And what rights do veterans have when they’re ready to return to work?

A DEMANDING REQUIREMENT.
The federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which defines employer responsibilities, is one of the most far-reaching and restrictive federal regulations covering private employers.

Essentially, USERRA guarantees certain employees the right to take time off work to serve in the military, be reinstated upon returning from the military and be protected from discrimination on the basis of any prior or anticipated military leave. In addition to USERRA, some state laws may impose similar, or greater, obligations on employers. Let’s review some of the key provisions of USERRA . . .

COVERAGE UNDER THE ACT. USERRA applies to all employers, regardless of size, and to every employee, regardless of length of service or part-time status (with the exception of workers employed for brief, nonrecurrent periods), who is absent from employment due to "service" in the Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service, Army National Guard, Air National Guard, or any other category of persons designated by the president at the time of war or national emergency.

"Service" includes voluntary or involuntary active duty, active duty for training, initial active duty for training and full-time National Guard duty. It also includes any absence needed for an examination to determine whether a person is fit to perform military duty.

NOTICE OF THE NEED FOR LEAVE. Employees must provide employers advance written or oral notice of their need for military leave (USERRA does not define how much notice must be given) unless giving such notice is impossible, unreasonable or precluded by military necessity. Employers can and should require a copy of the military orders to document the need for the leave.

PAY WHILE ON LEAVE. USERRA does not require employers to pay for military leaves — the military generally pays its activated members. Some employers choose to pay for a portion of the leave or pay a portion of the employee’s pay. Many employers also allow employees to use any accrued vacation during a military leave, although this cannot be required. Salaried exempt employees who leave for military duty and work for the employer in the same workweek must be paid for the entire week.

BENEFITS WHILE ON LEAVE. If the period of service is less than 31 days, employers must continue health insurance and can only require the employee on leave to pay his or her regular share of the premium. If the period of service is greater than 31 days, the option to continue health insurance benefits for up to 18 months must be extended under the provisions of COBRA. If coverage is terminated while the employee is on military leave, the employee and his or her dependents may not be subject to waiting periods or preexisting condition exclusions upon reinstatement.

Employees returning from military leave are entitled to any benefits determined by seniority that they had when their leave began and also those benefits that would have accrued had they remained continuously employed.

Military leaves may not be treated as breaks in service under pension plan benefits. For any vesting purposes, employees returning from military leave must be treated as if they never left.

REINSTATEMENT RIGHTS. Reinstatement rights apply to veterans whose cumulative period of uniformed service does not exceed five years while employed by the same employer, assuming the veteran has not received a dishonorable discharge. Upon completion of military service, the returning veteran must provide notice to the employer. The amount of notice required and time allowed before reporting back to work depends on the length of time the veteran served, for example:

• For service of fewer than 31 days, the returning veteran must report to work by the beginning of the next regularly scheduled work period on the first full day after release from service, or if this is impossible or unreasonable, as soon thereafter as possible.

• For service of 31 to 180 days, he or she must apply for reinstatement no later than 14 days after military service ends, or if this is impossible or unreasonable, on the next calendar day on which it is possible.

• For service of 181 days or more, the returning veteran must apply for reinstatement within 90 days of the end of the military service.

Returning service members must be re-employed in the same or similar position they would have attained but for their absence for military service, with the same seniority, status, pay, rights and benefits. If necessary, employers must also make reasonable efforts to train returning employees for re-employment.

ANTI-DISCRIMINATION CLAUSE. Employers cannot consider an employee’s or applicant’s past, present, or future military service or obligations in any employment decision. Additionally, employers may not discriminate in employment or take any adverse employment action against any person who exercised rights under the Act.

Perhaps most surprising are the termination provisions of USERRA: employees who have served in the military for more than 180 days cannot be terminated without cause for at least one year following redeployment, and employees are protected from termination without cause for 180 days if the period of service was between 30 and 180 days (this includes employees who are employed at will).

BE PREPARED. Employee handbooks should contain military leave policies and, before granting a leave, employers should consult with an expert to verify any unique compliance requirements in their state. Most important is the attitude with which an employer approaches the employee in need of a military leave.

USERRA was intended to protect the people who defend our freedom and who prepare to, and indeed, protect each of us. While USERRA’s requirements may seem excessive and restrictive during peacetime, during a time of national threat, the sacrifices made by employers pale in comparison to those of the soldiers and their families. It is in this spirit that a military leave should be proudly granted.

The author is president of Seawright & Associates Inc., a management consulting firm located in Winter Park, Fla. For the past 15 years, she has provided human resource management and compliance advice to employers across the country. She can be contacted at jpileggi@seawright.com or 407/645-2433.