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Most HR professionals are aware that under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and similar state laws, they must provide military leave for employees with military service obligations, such as those who serve in the National Guard and military reserves and reemploy them when that duty is over. What often is not clear is what obligations employers have while their employees are on military leave.
USERRA Protections Are Far Broader Than Most Employment Laws The first thing to be aware of is that USERRA may apply to an employer even if the employer has too few employees to be covered by other employment laws. Under USERRA, “employer” is defined as “any person, institution, organization, or other entity that pays salary or wages for work performed, or that has control over employment opportunities.” Unlike other federal employment laws, such as the Family and Medical Leave Act (FMLA), there are no exceptions based on the size of the employer or the number of employees. “Employee” is defined as “any person employed by an employer.”
USERRA’s protections apply to all employment positions, including those that are for a brief, nonrecurrent period and for which there is no reasonable expectation that the employment position will continue indefinitely or for a significant period. USERRA does not require an employee to have been employed for a certain length of time before being covered by USERRA, as the FMLA does. Similarly, there are no exceptions, as there are in the Fair Labor Standards Act, for executive, administrative, or professional employees.
The employee is entitled to military leave whether serving in the reserves or volunteering for duty. USERRA provides for military leave for an employee’s “service in the uniformed services,” which includes all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war.
Similarly, USERRA’s notice requirement is far broader than under other laws. Subject to certain exceptions, to be entitled to USERRA’s protections, the employee must notify the employer that they intend to leave employment to serve in the uniformed services. The notice may be either verbal or in writing and does not need to follow any particular format. USERRA does not specify how far in advance the notice must be given; it simply requires that the employee provide notice as far in advance as is reasonable under the circumstances.
Obligations While the Employee Is on Military Leave While the employee is away on military leave, they are considered to be on a furlough or leave of absence and are entitled to the same nonseniority rights and benefits generally provided by the employer to other employees with similar seniority, status, and pay who are on similar furloughs or leaves of absence. USERRA does not, however, require that covered employees be provided with paid military leave or be compensated for the difference between their military pay and what they would make in civilian employment. But some state military leave laws do.
For example, West Virginia’s military leave law, which only applies to public employers, requires that employees receive up to 30 days of military leave each year “without loss of pay” and up to an additional 30 days if activated under certain federal authority. The statute specifies that “without loss of pay” means that employees must receive their normal compensation, so simply making up the difference between military and civilian pay will not suffice.
Questions often arise about whether employees on extended military leave are entitled to accrue vacation or sick leave or to receive bonuses that are paid while they are on military leave. The answer depends on how the employer treats other employees who are on similar nonmilitary forms of leave.
Although USERRA requires that employees receive the same nonseniority rights and benefits generally provided to other employees on similar furloughs or leaves of absence, an employee away on military leave is not entitled to any additional benefits or preferential treatment. Thus, if employees on similar nonmilitary leave, such as FMLA leave or an unpaid leave of absence, accrue vacation or sick leave or are paid a bonus, employees on military leave must receive the same benefit. If the employer does not provide these benefits to other employees on similar leaves, it does not need to provide them to employees on military leave.
Similarly, if an employer pays out vacation all at once at the beginning of the year, the employer may prorate the amount of vacation based on an employee’s absences for military leave the previous year only if the employer prorates vacation for other employees on similar nonmilitary leaves of absence.
It is important to remember, however, that while accrual of leave is a nonseniority benefit that only has to be provided to employees on military leave the same as it is to other employees on comparable nonmilitary leaves, if leave accrues at different rates based on length of employment, then the time spent on military leave must count toward employment for determining the rate of leave accrual.
For example, suppose an employer provides two weeks of vacation per year for employees with one to four years of employment, and then increase their vacation to three weeks per year after five years of employment. If an employee with four years of service takes a year of military leave and then returns, they will now be eligible for three weeks of vacation per year because the year of military leave counts toward their length of employment.
If an employee has health plan coverage, the plan must permit the employee to continue the coverage for him- or herself and any covered dependents for the lesser of 24 months following the beginning of the military leave or the date when they fail to return from service or apply for a position of reemployment. If the period of military service is less than 31 days, the employee cannot be required to pay more than the regular employee share for health plan coverage. For periods of service 31 days or longer, however, the employee may be required to pay up to 102% of the full premium under the plan.
USERRA does not specify how an employee must elect to continue health plan coverage; therefore, health plan administrators may develop reasonable requirements addressing how continuing coverage may be elected, consistent with the terms of the plan and USERRA’s exceptions to the requirement that the employee give advance notice of service in the uniformed services.
Another question that often comes up is whether the employer can fill the position of someone who is away on extended military leave. The answer is yes, but the new employee may need to be bumped upon the service member’s return. Nothing in USERRA prohibits an employer from hiring a replacement for an employee who is away on military leave. USERRA only concerns itself with the service member-employee’s reemployment rights. In fact, the regulations implementing USERRA expressly contemplate that an employer may hire a replacement for an employee while the employee is away on military leave, but the employer still has to reemploy the returning service member. Employers may not refuse to reemploy a returning employee on the basis that another employee was hired to fill the vacated position during the employee’s time on military leave, even if reemployment might require the termination of that replacement employee.
The Bottom Line Reemploying an employee who is away for a short period of military leave, such as a drill weekend or two-week annual training, usually does not raise an issue for most employers. When employees take extended periods of military leave, however, employers must be aware of their obligations to those employees under both USERRA and applicable state law. And because employers typically do not deal with military leave as often as they do FMLA leave or workers’ compensation leave, they may be less certain about what those obligations are. If in doubt, a quick call to your employment lawyer can save you a lot of headaches (and possibly money). Please reach out to a member of our Labor & Employment Compliance team if you have any questions or need any assistance. |
