Main Issues from Chapter – Military Leave

1.	Military leave is governed by the Uniformed Services Employment and Reemployment Rights Act (USERRA), which became effective in 1994.

2.	In additional to federal law obligations, many states impose additional obligations on employers regarding military leave. (Call Diane Goode to request information on specific states.) 

3.	All public and private sector employers are required to provide leaves of absence to employees who need to satisfy their military obligations. (Section 652)

4.	Under USERRA, reemployment rights and benefits extend to all employees absent from work due to "service in the uniformed services." (Section 653)
	
The "uniformed services" include:
		
		Army
		Navy
		Air Force
		Marines
		Army Air National Guard
		Air National Guard
		full-time National Guard duty
		commissioned corps of the Public Health Service
any other category of persons designated by the President in time or war or national emergency

5.	"Service in the 'uniformed services'" includes: (Section 654)

		active duty
		active duty for training
		initial inactive duty for training
		inactive duty training
		full-time National Guard duty
absence from work for an examination to determine an individual's fitness for any of the types of duty noted above.

6.	Employees are required to provide the employer advance notice of their military obligations.  This can be an oral or written notification, and may come from an officer of the military branch in which the employee is serving.  We will want to ask the employee to provide a copy of the military orders, training notices, or induction information.  No advance notice is required if "military necessity" precludes doing so, or if it is "otherwise impossible or unreasonable."  (Section 655)

7.	The employee's military leave absences from employment may not exceed five (5) years (cumulative).  See Section 656 (Duration and Timing of Leaves) for the eight categories of service that do are not counted toward the five-year limitation. (Section 656)			
			
8.	Employers are not required to compensate employees for absences due to military service.  The employee may elect to use any accrued vacation leave in lieu of unpaid military leave.  The Employer cannot require an employee to use vacation time for the purpose of military leave. (Section 657)

9.	Under the Fair Labor Standards Act, an exempt employee cannot incur any reduction in weekly salary if the employee misses part of a workweek due to military	leave. An employer is not obligated to pay an employee's salary if the employee is absent for a complete workweek due to military service. (Section 657)

10.	Employees on military leave are entitled to the same benefits provided to employees on other leaves. This also applies to vacation.  If employees on other types of leave continue to accrue vacation, then employees on military leave continue to accrue them, too. (Section 658)

11.	Employees returning from military leave are entitled to any vacation accrued at the time the military leave began, and is entitled to begin accruing vacation at the rate the employee would have attained if the employee had not taken military leave.

12.	Employees returning from military leave are entitled to "the seniority and other rights and benefits determined by seniority" that they would have attained with reasonable certainty had they not gone on leave. (See Section 658)

Individuals returning from military leave are required to pay the employee cost, if any, of any funded benefit to the extent that other employees on leaves of absence would be required to pay. (Section 658)

13.	The employer is required to offer an individual on military leave the option of continuing their insurance coverage for a period of up to eighteen (18) months by self-paying the cost of such coverage.  The employee's contribution toward such coverage varies according to the length of the military leave. (Section 658)

14.	There is no "break in service" in the employee's pension plan due to military leave.  Periods of military service must be considered as service for vesting and 	benefit accrual purposes. (Section 658)

15.	The Employer is required to make (on behalf of employees returning from military leave) any pension contribution that the employer would have made if the employee had not been absent due to military leave. (Section 658)  

16.	Both the employer and the employee have obligations regarding reinstatement.  The time limits for returning to work depend on the duration of the employee's military service.  (Section 659.1)

	Duration of Military Service			Return to Work

	Less than 31 days, 				Beginning of first regularly scheduled
or for fitness for duty examination	workday that would fall 8 hours after employee returned home from exam, or as soon as possible

31 days to 180 days	Must submit an application to employer no later than 14 days following completion of service, or as soon as possible
		
180 days or more	Must submit an application no later than 90 days after completion of service

If an employee is hospitalized or convalescing from a service-related injury, then these time limits are extended for up to two (2) years.  The two-year period may be extended by the minimum time required to accommodate a circumstance that would make reporting within the two-year period impossible or unreasonable.
	
If an employee fails to report or to re-apply for employment within the time limits noted above, the employee shall be subject to the employer's policy regarding unexcused absences. 
	
17.	To be eligible for reemployment rights, the employee must have provided appropriate notice of his/her military obligation, must have served for a period not exceeding five (5) years, and must have reapplied for employment within the appropriate time frame. (Section 659.2)	

18.	To be eligible for reinstatement rights, the employee must have completed his/her military service under honorable conditions.  Details regarding "other
	than honorable" discharge may vary by military branch. (Section 659.2)

19.	The employer has an affirmative obligation to reemploy an individual who has met the reinstatement requirements.  There are very limited exceptions. 

The individual's length of military service controls the reinstatement obligations. Individuals are entitled to reinstatement to the position the individual would have attained if he or she had not gone on military leave.  (Section 659.3)  

	Length of Military Service				Reinstatement Guideline

Fewer than 91 days of military service	"Promptly reemployed" in a position that he or she would have attained if continuously employed, provided the individual is qualified for the job or can become qualified after reasonable efforts by the employer.

If the individual is not qualified for the position, the individual must be reemployed in the position he or she left prior to military service.

If the individual is not qualified for the position he or she would have attained or the position he or she previously held, the employer must reemploy the individual in any other position that is the nearest approximation of  which he or she is qualified, with full seniority. 

91+ days of military service	“Promptly reemployed" in a position that he or she would have attained if continuously employed, provided the individual is qualified for the job or can become qualified after reasonable efforts by the employer.

If the individual cannot become qualified for the position, the individual must be reemployed in the position he or she left prior to military service, or in a position of equivalent seniority, status, and pay, so long as the individual is qualified for the job or could become qualified for the job after reasonable efforts by the employer to qualify the individual.

Employees who served 91+ days who cannot qualify for the position he or she would have attained, their former positions, or a position of equivalent seniority, status, and pay must be placed in a position of like seniority, status and pay for which they are qualified to perform, with full seniority.

Employees returning from military leave can waive their right to reinstatement to his or her prior position. (Section 659.3)			
			
20.	The employers must make reasonable efforts to provide refresher training and other training necessary to update the returning employee's skills in instances where the employee is no longer qualified due to technological advances. (Section 659.3)

21.	All employers have obligations to those individuals returning from military leave with service-related disabilities. The employer must make reasonable accommodations so the employee can perform the duties of the position he or she would have held but for military service. (Section 659.3)

22.	In the event of conflicting reemployment claims, the individual who left first has the superior right to a position, while the other returning employees are entitled to reemployment with full seniority in nay other position that provides similar status and pay or in a position which is the nearest approximation consistent with the circumstances of the individual's case. (Section 659.3)

23.	Employees reemployed after a military leave of 181 days or more may not be discharged without cause for one (1) year after the date of reemployment.  An employee who is reemployed after a military leave of 30 to 180 days may not be discharged without cause for six (6) months after the date of reemployment.  Employees who are reemployed after military leaves of 30 days or less are not protected from discharge without cause. (Section 660)

24.	Employers are prohibited from retaliating against individuals who file complaints under the USERRA. who testify, assist, or otherwise participate in investigations or proceedings under USERRA. (Section 660)

25.	Adverse employment actions are not limited to discharge.  Employees must make sure employees on military leave are not denied any "benefits of employment" such as the chance to bid on a job by virtue of their seniority. (Section 660)

26.	Employers can be sued by the employee or the U.S. government for violation of USERRA. (Section 661)