Although we just celebrated Labor Day, rather than Veterans Day, we also marked another national milestone: for the first time in 20 years, the U.S. is not actively engaged in war in Afghanistan. As the last of the 800,000+ American service members come home, there will be calls for celebration, along with the inevitable inquiries still happening up on the Hill. For all the employers out there, here is your reminder: to be sure to brush up on how the Uniformed Services Employment and Reemployment Rights Act (USERRA) works.
In this article, I will provide you with a quick overview of USERRA and multiple resources to enable you to be fully informed. Let’s get started.
USERRA – when does it apply?
USERRA provides reemployment rights to individuals who take leave from their civilian jobs to serve in the military. It also prohibits employment discrimination and retaliation against past and current members of the uniformed services.
All U.S. employers are covered under USERRA, including both private and governmental employers, regardless of size.
An employee is entitled to take job-protected military leave pursuant to USERRA from the first day of employment. There is no minimum length of employment or hours of service requirement. Consequently, full-time, part-time, and even temporary and seasonal employees are generally covered by USERRA, except to the extent that the period of employment was intended to be extremely brief with no reasonable expectation that the employment would have continued indefinitely or for a significant period.
Covered military branches
- Army, Navy, Marine Corps, Air Force, and Coast Guard
- Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, and Coast Guard Reserve
- Army National Guard and Air National Guard
- Commissioned Corps of the Public Health Service
- Any other category of persons designated by the President in time of war or emergency
Covered military service
Covered service includes voluntary and involuntary service for:
- Active duty and active duty for training
- Inactive duty training
- Full-time National Guard duty
- Fitness-for-duty exams
- Funeral honors duty
- Duty performed by intermittent employees of the National Disaster Medical System (NDMS)
An employee is required to give his or her employer advance notice of upcoming military service, but USERRA does not define how much advance notice must be provided. Importantly, an employer may not require an employee to provide any documentation of the upcoming military service. That means an employer may not demand that the employee provide enlistment papers or active-duty orders before taking military leave. Upon return, employers must establish eligibility for reemployment. This is based on the length of time the employee was engaged in a covered service.
- Service of 1 to 30 days: The employee must report to his or her employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service, after allowance for safe travel home and an 8-hour rest period.
- Service of 31 to 180 days: An application for reemployment must be submitted to the employer no later than 14 days after completion of service.
- Service of 180+ days: An application for reemployment must be submitted to the employer no later than 90 days after completion of the military service.
This is not a one-size-fits-all process. Any of the documents listed below may be sufficient to provide the employer with the information they need to ensure the employee has requested for reemployment in a timely fashion:
- Department of Defense (DOD) 214 Certificate of Release or Discharge from Active Duty;
- Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service;
- Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority;
- Certificate of completion from military training school;
- Discharge certificate showing character of service; and,
- Copy of extracts from payroll documents showing periods of service; or
- Letter from National Disaster Medical System (NDMS) Team Leader or Administrative Officer verifying dates and times of NDMS training or Federal activation.
Duration of military leave
Under USERRA, an employee may serve in the military for a total of 5 years, which need not be continuous, and still retain reemployment rights with his or her employer. Some military service, such as annual training, involuntary active-duty extensions, the period from when the employee’s deployment ends and they are officially back to work, and recalls due to a war or national emergency are not counted in the 5-year cumulative total. In addition, other exceptions may apply, such as when an employee was hospitalized or recovering due to a military service-related illness or injury which may extend the limit for an additional 2 years.
When an employee returns from military service, the employer must return the employee to the job they would have attained had they not been absent for military service. This “escalator clause” means that if the employee would have been reasonably certain to have gotten a new job assignment or promotion based on his or her seniority or experience, they must be given the ability to have that new position upon returning from military leave. Depending on the length of military service, the returning employee must follow specific reemployment procedures, including deadlines for applying for reemployment. For employees who completed 31 or more days of military service, the employer may require the employee to provide documentation showing that he or she was discharged under honorable or general conditions, military service did not exceed the cumulative five-year limit, and the application for reemployment was timely.
Employers also must provide the returning employee with his or her seniority and seniority-related benefits, same (or escalated) rate of pay, immediate reinstatement of health insurance, and retraining. For vesting purposes, the employee must be treated as not having a break in employment.
Protection from discharge
An employee who complies with the return-to-work provisions to become reemployed following military service may not be discharged from employment without cause. “Cause” is based on conduct or the application of legitimate non-discriminatory reasons.
- Employee with a military service of 181+ days: the employee may not be fired without cause for one year after the date of reemployment.
- Employee with a military service of 31-180 days: then the period of “for cause” discharge is 180 days.
- Employee with a military service of 30 or fewer days: No protection from discharge without cause.
Undue hardship and affirmative defenses
Under USERRA, employees generally have wide latitude to take leave to serve in the military. However, employers may refuse to reemploy an employee returning from military service under certain circumstances. If making efforts to qualify returning military members to their job duties would be of such significant expense or difficulty as to cause an “undue hardship,” the employer may be excused of the reemployment. Reemployment may also be excused if changed circumstances make reemployment impossible or unreasonable, such as if a reduction-in-force eliminated the job. Keep in mind that the employer has the burden of proving these excuses from reemployment, should it be challenged.
USERRA – In case you didn’t get enough
If you really want to take a deep dive into the world of USERRA, perhaps re-read our blog from March 2021, where we let you know about the notable expansion of protections extending to National Guard service ordered by a governor in support of a national emergency or major disaster (*ahem*- need I make note last week’s Hurricane Ida blog). For more of a ‘soup to nuts’ reminder, look at our blog from February 2020 covering military deployments from a big picture perspective.
Since we haven’t quite nailed down world peace, the criminal justice system, mail-in ballots, or the on-going COVID pandemic, make sure your absence programs are up to date, as it is possible that our daughters and sons, mothers and fathers – being your employees – are possibly going to need to take a leave from work. This should at least get you started: https://www.reedgroup.com/paid-leave-checkup/.
Below are multiple resources that support the military leaves discussed above.
What ReedGroup is doing
ReedGroup continuously tracks and analyzes current and pending leave and accommodation legislation to determine potential impacts to our customers. If you’re looking for assistance managing leave of absence or accommodations or to ensure compliance across your organization, ReedGroup has solutions for you. Review our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.