USERRA and other leaves

This week, Guardian and ReedGroup debuted the last lesson in our 2021 Absence Management Academy webinar series, presenting Absence Management Academy: USERRA and Other Uncommon Types of Leave. Over 2,500 people  registered; many engaged in important dialogue with our subject matter experts, Sheri Pullen, and Ryan M. Nelson CLMS. We had a great Q&A session where tricky questions around unique leave scenarios were raised. Today, our experts walk you through some of those corner case scenarios, which relate to military leaves of absence.

Sheri: Ryan, I was so impressed with the number of attendees and diversity of employers represented at our recent webinar. One of the largest categories of outstanding questions and concerns heavily focused on Uniformed Services Employment and Reemployment Rights Act (USERRA) and other military leaves. Many employers may be confused as to when USERRA applies for different military service or activities. Can you help clarify this one?

Ryan: This is a tricky nuance, partly because there are several activities that are covered, and differences in how USERRA applies depending on whether the employee is being called up at the National or State level. In general, USERRA covers military activities that are considered Active Duty, which can include deployment, training and other “special tasks” that may be listed as active duty in orders. USERRA will also cover activities such as a required weekday or weekend drill, service at funeral honors, and fitness for duty type activities. The complexity here, is that these activities did not historically qualify under USERRA for National Guard service if the orders were issued by a state government. This ideology actually shifted somewhat in January of 2021, as USERRA was amended to cover state call-ups for active duty (including training) with the National Guard when the state activity duty activity is in response to a declared national emergency or major disaster. For those seeking more details, there’s a great blog post here. I think what often is difficult for employers is that not much notice is required to ignite the employer’s duties under USERRA. If the employer receives some type of notice whether verbal, in writing, or from a designee, the employer should begin to engage in USERRA protection discussions with the employee, to determine the nature of their service, and to consider whether USERRA or a State Military leave may apply.

Sheri: Thanks Ryan. Another question: when does the duty to protect an employee under USERRA begin? A follow up question submitted asked: if an employer is put on notice that a recent hire needs to deploy prior to the start of their first shift, or at the same time, should that employer consider USERRA as a protected leave category?

Generally, an employer should consider USERRA in this circumstance, as the USERRA does not have an employment service requirement. Per the Department of Labor (DOL), “An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation.” And, if the employer were to ignore the request under USERRA or follow the duties therein, they may be at risk for USERRA compliance.

Ryan: That’s a great call out, Sheri.  As I shared in our presentation, the compliance complexity continues to be a challenge across the nation for employers and employees alike, as legal action can continue to change an employer’s responsibilities to their employees. Another question that arose during our presentation was whether employers must pay for military leave and for how long. Based on recent legal resolution surrounding equity claims for classes of employees’ service in the military and needing leave, employers may want to heavily consider their pay practices surrounding military. It’s important for employers to evaluate what types of short-term pay they’re providing to employees on other types of leave and align their military pay to ensure they’re not dissuading their employees from finding that balance between civilian-servicemember life. We covered more in this blog here.

Are there any other questions that we encountered, which may be critical for employers to reflect on?

Sheri: I think overall, it’s important for employers to understand the differences between the different types of leave protection available: USERRA for military service and training, FMLA for care of service member, FMLA exigency for a family member’s deployment, and many state-level military like laws. Further, employers should really review the return-to-work timelines under USERRA and confirming that they’re reviewing the allowable exceptions to those timelines to ensure they’re meeting compliance requirements.

Ryan: Thanks Sheri. I think one thing that most people attending our webinar would agree on: leave laws are complex. If employers are looking for management of claims, or to ensure compliance across your organization, Guardian and ReedGroup have solutions for you. You can access Guardian’s Absence Management Blog here and make sure to check out ReedGroup’s Absence Management Academy, with information organized by leave type.


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.