Marines, Air Force, Navy, Army and Coast Guard – United States reservists are currently being called to active duty by the tens of thousands. If any of these brave men or women work for you, it is imperative that you are familiar with federal and state laws regarding their employment status and benefit rights.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted in 1994 following the Gulf War to provide job, benefit and reemployment protection for service members called into active duty. USERRA was revised in September 2004 with the “final rules” being issued in March 2005. Information available from the Department of Labor (DOL) indicates that “USERRA is intended to minimize the disadvantages to an individual that occur when that person needs to be absent from his or her civilian employment to serve in this country’s uniformed services.” Many states also have veterans’ reemployment laws, and USERRA does not supersede any of these laws that establish rights or benefits that are more beneficial than the federal law.
Protections provided extend to the following areas.
First of all, be aware that service members are protected against discrimination – even during the hiring process. Employers cannot discriminate against someone based on his or her military affiliation, i.e. status in the National Guard or reserves.
The law provides for continuation of health benefits even when COBRA does not cover the employer. The employee may elect to continue coverage for up to 24 months and can’t be required to pay more than 102 percent of the full premium for the coverage. If the military service was for 30 or fewer days, the employee pays only the standard premium. It is important to note that illness and injury determined to be incurred by the reservist during a period of active duty are in no event required to be covered under the employer’s health plan.
As of March 10, 2005, employers must “provide to persons entitled to rights and benefits under USERRA a notice of the rights and benefits, and obligations of such persons and such employers under USERRA.” Employers may provide the notice, “Your Rights Under USERRA,” by posting it where employee notices are customarily placed. However, employers are free to provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing it via e-mail).
An employer must reemploy service members returning from active duty to a position that the employee would have attained if he or she had been continuously employed, provided the individual is qualified. Employers are not required to reemploy individuals whose employment prior to the military service was for a brief, non-recurrent period or if there was no reasonable expectation that the employment would continue indefinitely.
If, after reasonable efforts by the employer to train, the returning non-temporary employee is not qualified for the higher-level position he or she would have attained if continuously employed without the break for military service, the employer must reemploy the individual in the position he or she left. If the returning non-temporary employee was on military service for 91 days or more and is not qualified for the higher-level position, the employer has the option of offering the returning employee a position of like seniority, status and pay.
The returning service member is required to report back to his or her employer and provide appropriate documentation within a specified amount of time following active military service. The length of time allowed depends on how long the member employee was away on active duty:
– Service of 1 – 30 days: The employee must report to his or her employer by the beginning of the first work shift that begins on the next calendar day following completion of service, after allowance for safe travel home . . . and an eight-hour rest period.
– Service of 31 – 180 days: The employee must submit an application for reemployment no later than 14 days after completing his or her service.
– Service of 181 or more days: The employee must submit an application for reemployment no later than 90 days after completing his or her service.
– The law requires “prompt” reemployment depending on the circumstances of each individual case.
The DOL also states that “employers must make reasonable efforts to qualify returning service members who are not qualified for reemployment positions that they otherwise would be entitled to hold . . .” This includes refresher training to update a returning employee’s skills where he or she is no longer qualified due to technological advances. This provision requires employers to help returning service members “catch up” (qualify) where necessary in order to return to the job that they would have held had they remained continuously employed. Be aware, however, that even if the person cannot become qualified for that position (for military service of 91 or more days), he or she must be returned to the position held on the date he or she entered active duty or one that nearly approximates that position.
Unqualified returning employees
If, after reasonable efforts by the employer, the individual is unqualified for the position held at the time the military service began, reemployment with full seniority must be offered in any other position of lesser status and pay for which the returning employee is qualified.
Protection from discharge
Reemployed individuals may not be discharged, except for cause, within the first year of returning from military service of more than 180 days or within six months from military service of between 90 and 180 days.
Pension, 401k and other benefit plans
Detailed treatment of pension plans (that provide retirement benefits and defined benefit plans, defined contribution plans, and profit sharing plans that are retirement plans) tied to seniority is also provided under the law. In general, the law states the following (from the Non-Technical Resource Guide to the USERRA):
– A reemployed person must be treated as not having incurred a break in service with the employer maintaining a pension plan;
– Military service must be considered service with an employer for vesting and benefit accrual purposes;
– The employer is liable for funding any resulting obligation; and
– The reemployed person is entitled to any accrued benefits from employee contributions only to the extent that the person repays the employee contributions.
Enhanced benefits for disabled veterans
USERRA offers special treatment for returning members with disabilities incurred or aggravated during military service. The law basically states that the employer must make reasonable efforts to accommodate the person’s disability so he or she can perform the job. Failing that, the person must be employed in a position of equivalent seniority, status and pay. Finally, if the person does not become qualified for either of the aforementioned positions, he or she must be employed in a position consistent with circumstances of that person’s case that most nearly approximates the position in terms of seniority, status and pay.
Let’s not forget the employees left behind at your business to do the work. Some of the service members leaving for active duty may be important employees and certainly leaders in the workplace. Your company’s teamwork may be disrupted, and teamwork is essential to success in the areas of production, profitability and safety. While full-time employees are away, it may be necessary to review hiring policies to ensure replacements are the highest quality available. “Temps” are often used to replace departing employees but you still must know whom you’re hiring and allowing into your workplace. Provide adequate training on safety policies, emergency procedures and other important issues, i.e. sexual harassment and discrimination policies.
Where to look for help
There is a wealth of information available to business owners, service members and their families. The federal law is administered by the Department of Labor, Veterans’ Employment and Training Service (VETS), Office of Veterans’ Reemployment Rights; contact them for additional information at 800-336-4590. Contact your local or state department of labor for details on state-specific veterans’ rights laws.
One of the best resources available to business owners is A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA), which is available at the VETS Web site at http://www.dol.gov/vets/whatsnew/uguide.pdf. The guide is free and can be printed directly off the Web site. An excellent resource for families of service members is the Guide to Reserve Family Member Benefits that is available at the Reserve Officers Association’s Web site at http://www.roa.org. It too can be printed directly off the Web site and provided to your employee’s family.
This Loss Prevention Bulletin is provided for informational purposes only. Please consult with qualified legal counsel to address your particular circumstances and needs. Zurich is not providing legal advice and assumes no liability concerning the information set forth above.