Employers whose employees take leave for military service (whether regular service or reserve duty) must comply with applicable federal and state laws, including the Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA). USERRA applies to all employers, whether they have only one employee or many employees.
Employers’ obligations under USERRA include the following:
Must Permit a Leave of Absence
Employers must permit employees to take up to five (5) years of leave for military service. Employers may permit, but cannot require, an employee to take paid vacation time as all or part of the employee’s military leave.
Continue Health insurance Coverage
Employers must allow employees who take leave for military service to continue their health insurance coverage for up to twenty-four (24) months under the employers’ plan. Employers may require employees to pay premiums for that coverage.
Must Re-employ Following Return
Employers must re-employ returning service members who have taken five years or less of cumulative leave for military service. The returning employee has a certain amount of time to return to work or apply for re-employment, depending on how long he or she has been on leave.
Employers must re-employ returning service members in either the same position or a similar position that they would have held at the time they returned but for the leave. This “escalator provision” generally requires employers to provide employees with the same seniority, status, pay, and other rights and benefits that the employees would have received had they not taken a military leave. In determining the position to which a returning employee is entitled, the company must consider whether there is a reasonable certainty that the employee would have been promoted to a more senior position had he or she not taken leave. If so, the company may be required to promote the returning employee and provide any necessary training for that promotion. The extent of these obligations may depend on length of the employee’s military leave.
There can be complexities if there are no open positions or if the employee was injured during military service such that he or she could not hold the job to which the employee would otherwise be entitled. Competent employment counsel should be consulted to ensure the company is aware of its rights and obligations.
Even if your company is an at-will company in an at-will state, USERRA changes employee rights. Returning service members can only be terminated for cause for a certain period of time after they return to work, ranging from six (6) months to one (1) year, depending on the length of the employee’s military service leave.
No Discrimination or Retaliation
Employers may not discriminate against any employee or applicant due to his or her past or present military service. Employers also may not retaliate against any employee who seeks to enforce his or her rights, or the rights of another employee, under USERRA.
Other Rights and Obligations
Employers may have additional rights and obligations with respect to employees who take leave for military service or training. Employers should consult with counsel regarding employment policies and practices that best address the needs of the company while complying with federal, state and local laws applicable to the company’s place of business.