A notable USERRA expansion flew largely under the radar following the enactment of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act on January 5, 2021. Covertly tucked in the 100+ page bill is a provision that extends the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) coverage to National Guard members performing certain state active duty. Prior to the expansion, National Guard duty under the authority of the governor of a state was not covered under USERRA.
Protections may extend to National Guard service ordered by governor in support of national emergency or major disaster
Effective January 5, 2021, National Guard duty performed as state active duty is USERRA-qualifying when it:
- consists of National Guard training or other duty, excluding inactive duty, performed under the authority of a state governor;
- does not entitle the National Guard member to pay from the federal government;
- lasts for 14 days or more; and
- is in support of (a) a national emergency declared by the President under the National Emergencies Act, or (b) a major disaster declared by the President under Section 401 of the Stafford Act.
As a result, employers can no longer categorically assume that USERRA protections are unavailable for employees performing service at the behest of the state government. Instead, employers must carefully assess the relevant facts and circumstances to determine whether leave is USERRA-qualifying. This can be challenging because USERRA does not allow employers to mandate that servicemembers provide supporting documentation such as military orders prior to leave. If in doubt, always partner with your employment counsel and/or third-party leave administrator for guidance.
What employers should do
Employers should take this opportunity to brush off and revise their military leave policies and procedures to ensure compliance with this expansion of USERRA. Keep in mind that National Guard members performing service under the authority of a state may have employment protections under state law, even if the service does not meet the specific requirements above for federal protection. Ideally, employers should provide notice to employees of the change in law and associated company policy. The U.S. Department of Labor has issued a convenient fact sheet that can be leveraged to educate your workforce about this expansion. Finally, don’t forget to train your managers and human resources personnel to ensure they honor the expanded leave entitlements and job protections for qualifying servicemembers.
What ReedGroup is doing
ReedGroup is updating its resources and operational processes to incorporate the legislative changes and ensure clients’ employees are receiving all leave and protections to which they are entitled under USERRA. If you are a ReedGroup client with questions about military leave administration, don’t hesitate to reach out to your client services team.
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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.