button Vol. 7
No. 1
Summer 2002


Cell Phone Liability
E-mail Usage Update
line Guard & Reserve Leave
line Useful Internet Terms
line Health Insurance Crisis
line Briefs

Braun Consulting News
News on Personnel, Labor Relations and Benefits

See our Archive Pages for Back Issues of Braun Consulting News!

button National Guard & Reserve Leave.

  • Introduction.                                                                 (link)
  • Basic Facts.                                                                (link)
  • Employee's Responsibilities and Requirements.  (link)
  • Employer's Responsibilities and Requirements.   (link)
  • Facts about Time Off, and Time off Work.               (link)
  • Benefits and Pay Issues.                                           (link)
  • Resource for Employers.                                           (link)

button Introduction.

The Uniformed Services Employment and Reemployment Rights Act (USERRA), was enacted in October 1994. It was updated in 1996 and 1998, and provides job protection and rights of reinstatement to employees who participate in the National Guard and Reserve.

button Basic Facts.

  • An employee is protected from unlawful discrimination by an employer because of their military affiliation. Protections are provided by USERRA for initial hiring and adverse employment actions by an employer if the employer's action is motivated, even in part, by the employee's military service.

  • An employer cannot refuse to allow an employee to attend scheduled drills or annual training. Employees must be excused from work to attend inactive duty training (drill) or annual training and the employer must re-employ the employee as if he or she had not been absent.

  • To be protected under USERRA, a National Guard or Reserve member must have a civilian job, must provide timely notification to the employer of military duty, and must report back to work for reemployment in a timely manner. Reemployment rights are provided even if the civilian job is described as "temporary", unless the employment was for a brief period with no reasonable expectation of continuance for a significant period of time.

  • USERRA does not apply to "state" military duty or governor call-ups of National Guard members. However, protection for such duty is generally provided by state statutes and in most instances is comparable to protections provided under the USERRA. Some State laws go even further to protect service men and women while engaged in military service. Don't just rely on the Federal law as there may be more to contend with.

  • An employee has reinstatement rights following voluntary military service. There is no longer any differentiation between voluntary and involuntary orders under the USERRA, so long as the basic eligibility requirements are met.

  • An employee's status or seniority in the workplace must be considered the same as if they had not been absent from the workplace, if the only reason for that absence was service in a uniformed service.

    A returning employee must be made "whole" by:

    (a) Being allowed to contribute to the pension plan any amount that would have been contributed had the employee not been absent.
    (b) Being reinstated with privileges and status the employee earned by length of service (for example, after 3 years with a company an employee may be entitled to accrue more vacation per year, or after 5 years an employee is automatically advanced to a new position or rate of pay.)

  • Concerning the job position an employee is returned to after military leave of absence here are the provisions:

    Except with respect to persons whose disability occurred in or was aggravated by military service, the position into which an employee is reinstated is determined by priority, based on the length of military service.

    The reinstatement rules are:
    Service of 1 to 90 days:
    (a) in the job the person would have held had the or she remained continuously employed (possibly a promoted position), so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer, or
    (b) if the person cannot become qualified, in the position the person was employed on the date of the commencement of military service which nearly approximates that position.
    Service of 91 or more days:
    (a) same as for service of 1 to 90 days, or a position of like seniority, status and pay, so long as he or she is qualified, or
    (b) if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service or a position which nearly approximates that position.

  • Valid military orders are all written or verbal orders issued by a competent military authority. A military member in receipt of official orders is obligated by federal statute to execute them. The recurring requirement to perform inactive duty training (drill) is an example of when written orders may not be formally issued.

button Employee's Responsibilities and Requirements.

  • An employee must give prior notice to the employer for leave of absence for military duty. Unless precluded by military necessity, advance notice must be provided either orally or in writing. Employees who participate in the National Guard or Reserve should provider their employers as much advance notice as possible. Failure to provide notice could result in denial of the protection of USERRA.

  • If an employee cannot provide satisfactory documentation for military service in excess of 30 days the employer must promptly reinstate the employee pending the documentation's availability. The employer may contact the military unit if necessary about the documentation.

  • Employees should be sensitive to employer scheduling requirements when providing notification and when submitting application to the unit commander for orders. Where possible, an employee should submit requests for orders during calendar periods outside of peak business seasons and not during the most popular vacation cycles.

button Employer's Responsibilities and Requirements.

  • An employer cannot require an employee to apply for military leave of absence or otherwise submit official documentation for approval of military leave of absence. An employer may not require documentation for notification prior to military duty. Further, an employer does not have a "right of refusal" for military leave of absence, so long as the employee has not exceeded the 5 years of cumulative service provided under USERRA.

  • An employee cannot be required to find someone to cover his or her work period when military duty interrupts the work schedule. They are responsible for notification but not for altering the work schedule or finding their replacement.

  • An employer may not require an employee to reschedule drills, annual training, or any other military duty obligation. However, there are situations in which the requested military leave may be considered cumulatively burdensome and the employer may contact the military commander of the employee's military unit to determine if the duty could be rescheduled or performed by another member. If the military commander determines that the military duty cannot be rescheduled or canceled, the employer is required to permit the employee to perform his or her military duty.

button Facts about Time Off, and Time off Work.

  • There IS a time limit to the amount of military leave an employer must permit. There is a 5-year cumulative service limit on the amount of voluntary military leave an employee can use and still retain reemployment rights.

  • Below are the items NOT included in the 5-year cumulative total:

    The 5-year total does not include:
    (a) inactive duty training (drills);
    (b) annual training; involuntary recall to or retention on active duty;
    (c) voluntary or involuntary active duty in support of war,
    (d) national emergency, or certain operational missions;
    (e) additional training requirements determined and certified in writing by the Service Secretary, and considered to be necessary for professional development or for completion of skill training or retraining.

    An employer concerned about the 5-year threshold should discuss the matter with the Commanding Officer issuing the orders returning the employee to duty.

  • The time limits that exist for an employee to return to work after completion of military duty are in three formats, dependent on the duration of military service. An employer should reinstate an employee within a matter of days of application, if not on the same day as the application is made.

  • If an employee does not return to work in a timely manner the employee is subject to the personnel policies and practices of the employer for unexcused absences. If your organization does not have such a policy this is one more reason to have one.

  • An employee does not have the right to make up periods of work missed due to drill or military leave of absence. An employer may choose to offer an employee the opportunity to work hours missed, as a benefit not provided under USERRA.

  • After completion of weekend drill the time limit for an employee to return to work is the beginning of the next regularly scheduled work period on the first full day following completion of service and expiration of an 8-hour rest period following safe transportation home.

  • The time limit for an employee to return to work after Annual Training or other types of extended military leave of absence depend on the duration of the orders.

    The rules are:
    * Service of 1 to 30 days: the beginning of the next regularly scheduled work period on the first full day following completion of service and expiration of an 8 -hour rest period following safe transportation home.
    * Service of 31 to 180 days: application for reinstatement must be submitted not later than 14 days after completion of military duty.
    * Service of 181 or more days: application for reinstatement must be submitted not later than 90 days after completion of military duty.

  • If an employee has an accident, is delayed by lack of military transportation, or is otherwise unable to report back in a timely manner the employee must report back to work as soon as possible. Unless the delay is through no fault of the employee, he or she is subject to the personnel policies and practices the employer would normally apply to employees with unexcused absences.

  • If an employee is injured or incurs a disability during military duty the deadline for reinstatement may be extended for up to 2 years. This applies to those who are convalescing due to a disability incurred or aggravated during military service, and employers must make reasonable accommodations for the impairment.

button Benefits and Pay Issues.

  • An employer is not required to pay an employee who is on military leave of absence, although many employees employed in State or Federal jobs do have some employer paid time while on active duty, so if you are a State or Federal employer check it out. While many employers offer differential pay or a specific number of paid military leave days, an employer is not required to pay an employee on military leave of absence.

  • The rules on contribution to the pension or thrift savings plan for periods of military leave of absence are as follows: Upon reemployment, the employee has 3 times the length of service (not to exceed 5 years) to make payments and the employer is liable to fund any resulting obligation of the plan within the same time frame.

  • There is no burden under the law for an employer to continue pension contributions while the employee is away from the work site on military leave of absence. However, an employer may choose to offer this benefit.

  • The rules for entitlement to health insurance are as follows:

    For absences of less than 30 days, benefits continue as if the employee has not been absent. For absences of 31 days or more, coverage stops unless the employee elects to pay for COBRA-like coverage (for a period of up to 18 months).

    Health insurance must be reinstated the day an employee is reinstated with no waiting period. If the employer cannot put the employee back to work immediately upon application, the health insurance must be restored immediately.

  • An employee does not accrue vacation or medical/sick days from the employer while on military leave of absence. An employer may choose to offer accrual of vacation or medical/sick days as an additional benefit. An employer is not required under USERRA to provide short-term compensation (pay, vacation, accrual, etc.) when an employee is not working at the worksite. State laws vary in this regard, so once more our recommendation is to make a thorough review of not just the Federal requirements but also those of your state.

button Resource for Employers.

The National Committee for Employer Support of the Guard and Reserve (ESGR) is an agency within the Office of the Assistant Secretary of Defense for Reserve Affairs. It operates programs directed toward U.S. employers, employees, and communities to ensure understanding of the role of Reserve component members.

The ESGR Ombudsman program provides "third party assistance" and informal mediation services to employers and members of the National Guard and Reserve.

To reach your local ESGR Committee for information or assistance, contact:

    * The ESGR Website at http://www.esgr.org
    * Call ESGR toll-free at 1-800-336-4590
    * Call your local National Guard or Reserve Unit

4. Useful Internet Terms. Next Page

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