On September 29, 2022, one day after Hurricane Ian made landfall on Florida’s southwest shores, President Biden signed into law the Civilian Reservist Emergency Workforce (CREW) Act. This Act directly amended two federal laws: the Robert T. Stafford Disaster Relief and Emergency Assistance Act and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Act amends USERRA to provide full-time employed Federal Emergency Management Agency (FEMA) Reservists with the same rights and protections provided by USERRA when they are deployed to disasters, emergencies, or critical trainings on behalf of FEMA. It provides protection from discrimination, penalization, or loss of employee benefits because of their deployment.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides statutory protection for service members. Enacted in 1994, USERRA offers reemployment rights to individuals who voluntarily or involuntarily take leave from their civilian jobs to serve in the military. USERRA also prohibits employment discrimination and retaliation against past and current members of the uniformed services.
USERRA applies to employees who are in the active and Reserve components of the Armed Forces, including Army, Navy, Air Force, Marines, Coast Guard, National Guard, Commissioned Corps of the Public Health Service, and any other category designated by the President in time of war or emergency (and now FEMA Reservists).USERRA is implicated when an employee is being deployed or called into other military service – it does not offer leave for family members of the military member.
Generally, employers may not refuse to allow an employee to take time off to serve in the military when covered by USERRA. The employee does not need to get employer permission before leaving for military service – they simply must provide notice.
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. 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 they were 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 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.
What Employers Should Be Doing
Because the CREW Act amended USERRA to now protect the job rights of FEMA Reservists while they are deployed to disasters, emergencies, and critical trainings, employers should be aware of their obligations under USERRA for any employees who are FEMA Reservists and may have been or will be called into service. You can learn more about USERRA obligations from ReedGroup’s Blog and Absence Management Academy.
What ReedGroup Is Doing
ReedGroup continuously tracks and analyzes legislation and rulemaking related to state and federal leave laws and ensures its product offerings are up-to-date and compliant. If you’re looking for assistance managing leave of absence, disability benefits, 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.