MILITARY LEAVE
In late 2004, without much publicity, President Bush quietly signed into law the Veterans’ Benefits Improvement Act (the “Act”). The Act amends sections of the 1994 Uniformed Services Employment and Reemployment Act (“USERRA”). The Act improved and extended housing, education, and other benefits for veterans and uniformed service members.
The Act contains two requirements of particular importance for employers. The first requirement extends the period for continuation of health care coverage. The second requirement creates an obligation to provide covered employees with notice of their USERRA rights, benefits, and obligations.
In early 2008, President Bush signed into law the National Defense Authorization Act, which includes amendments to the 1993 Family and Medical Leave Act ("FMLA"). The amendments create new military-related types of leave. It is not yet clear how these new FMLA military leaves will coordinate with USERRA or with similar state military leave laws.
In light of the recent amendments and the current events in Iraq, it may be beneficial to your agency to refresh yourself on the requirements of USERRA and see how the new amendments affect your existing policies and benefits. Although enacted in 1994, many agencies may not yet have had first hand experience with applying the requirements of USERRA. The new amendments probably will require some changes in your existing policies and benefits.
This article will provide a brief overview of USERRA, the amendments to USERRA, and and example of how states' military leave laws can coordinate with USERRA.
USERRA
Applicability
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) was enacted in 1994. USERRA prohibits an employer, including a potential employer, from engaging in acts of discrimination against past and present members of the “uniformed services”, as well as applicants to the uniformed services.
The “uniformed services” includes the Armed Forces (Army, Navy, Marine Corps, Air Force, and Coast Guard), the Army National Guard, the Air National Guard, the commissioned corps of the Public Health Service, as well as the reserve components of each of these services, and any other category of persons designated by the President of the United States in time of war or emergency.
“Service” refers to active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by the National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform those duties.
USERRA covers nearly all employees, including part-time and probationary employees. It does not cover temporary employees. Likewise, USERRA applies to virtually all employers regardless of size, including public and non-profit employers.
USERRA Requirements
An employer must reemploy service members returning from a period of service in the uniformed services if those service members meet the following five (5) criteria:
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The service member must be absent from a civilian job by reason of service in the uniformed services;
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The service member must give his or her employer advance notice of the service, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable;
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The cumulative period of service must not exceed five (5) years;
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The service member must not have been released from service with a dishonorable or bad conduct discharge; and
The service member must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment after conclusion of the service.
Restoration of Employment
Under USERRA, a service member’s rights to restoration of employment are based upon the duration of military service rather than the type of military duty performed. The time limits for returning to work are as follows:
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Service of Less than 31 days : The service member must report to his or her employer by the beginning of the first regularly scheduled work period on the first calendar day following the completion of the period of service and the expiration of eight (8) hours after a period allowing for the safe transportation of the service member from the place of that service to the service member’s home. For example, an employer cannot require a service member who returns home at 10:00 p.m. to report to work at 12:30 a.m. that night. However, the employer can require the employee to report for the 6:00 a.m. shift the next morning. If this is impossible or unreasonable through no fault of the employee, then the employee must report as soon as possible.
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Service of More Than 30 Days but Less than 181 Days : The service member must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then the employee must report as soon as possible.
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Service of More than 180 Days : The service member must apply for reemployment no later than 90 days after completion of military service.
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Fitness for Military Service Examinations : The service member must report in the same manner as stated above for “Service of Less than 31 days”.
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Extension for Service Connected Injury or Illness : Reporting or application deadlines are extended up to two (2) years for persons who are hospitalized or convalescing from a service related injury or illness.
Maintenance of Other Benefits
The employer is required to treat an employee on military leave as is if he or she is on a leave of absence. As a result, service members are entitled to the same rights and benefits as other employees of similar seniority, status and pay who are on leave of absence under policies in effect at the commencement of the military leave or established while on that leave.
USERRA guarantees pension plan benefits that accrued during military service for a service member. A service member who is reemployed must be treated as not having incurred a break in service by reason of his or her uniformed service. Time in uniformed service must be counted as service with the employer for the purposes of determining nonforfeitability of the service member’s accrued benefits and for the purpose of benefit accrual.
If the service member has coverage under an employer health plan, the plan must provide that the service member may elect to continue such coverage similar to the current COBRA health benefit continuation coverage.
The service member must, at his or her request, be permitted to use any paid time off benefit (such as vacation pay) that had accrued before the beginning of their military leave instead of the unpaid leave. However, a service member cannot be forced to use paid time off for military leave.
AMENDMENTS TO USERRA REQUIREMENTS
The Veterans’ Benefits Improvement Act (the “Act”) signed into law by President Bush in December 2004, amended certain USERRA requirements. The two new requirements that are of particular importance to employers are:
• The USERRA Notice Requirement, and
• Extension of Maximum Period of Employer Sponsored Health Coverage.
New Notice Requirement
The Act requires that employers provide employees with notice of their rights, benefits and obligations under USERRA. This notice requirement can be satisfied by a new poster that is being developed by the Department of Labor. The notice needs to be posted where the employer customarily place notices for employees. This poster can be obtained at www.dol.gov/vets/ .
Extension of Maximum Period of Employer Sponsored Health Coverage
The Act also extends the maximum period for which an employee may elect to continue employer sponsored health coverage from 18 months to 24 months. This requirement applies regardless of whether the employer is covered by COBRA.
COBRA, the Consolidated Omnibus Budget Reconciliation Act, gives workers and their families who lose their health benefits the right to choose to continue group health benefits provided by their group health plan. COBRA generally applies to employers with twenty (20) or more employees. Employees who elect continued coverage under COBRA may be required to pay the entire premium for coverage up to 102% of the cost to the plan.
Under the USERRA requirement, if a service member’s health plan coverage would terminate because of an absence due to military service, the service member may elect to continue the health plan coverage for up to 24 months after the absence begins or for the period of military leave, whichever period is shorter.
Similar to COBRA, the person cannot be required to pay more than 102% of the full premium for coverage under the employer sponsored health plan. If military service was for less than 31 days, the person cannot be required to pay more than the employee’s share of any premium for coverage under the employer’s plan.
The new extended continuation period applies to all military leaves that begin on or after December 10, 2004.
Extended Coverage Period’s Impact on Employers
Under COBRA, a covered employee is able to elect continued coverage of up to 18 months for loss of coverage due to termination or reduction in hours. Under the new amendments to USERRA, a service member is able to elect continued coverage of up to 24 months for loss of coverage when an employee is absent on military leave. Because USERRA and COBRA are now out of synch employers will probably need to adapt their COBRA procedures and forms for employees who are absent on military leave.
USERRA Contact Information
USERRA is enforced by the Department of Labor through the Veterans’ Employment and Training Service (“VETS”). Employers are encouraged to contact VETS for assistance in understanding and complying with USERRA requirements, including the new amendments. To find out more about USERRA, including the new amendments, visit the Department of Labor website at www.dol.gov/vets or call 1-866-4-USA-DOL.
STATE MILITARY LEAVE LAW EXAMPLE: INDIANA
There are two statutes in Indiana that cover military leave. They can be found at IC 10-16-7-1 et seq, entitled “Training and Active Duty of National Guard; Benefits of Members” and IC 10-17-4-1 et seq, entitled “Leave of Absence for Military Training” Both statutes are very similar, not only to each other, but to USERRA. However, USERRA is broader than the Indiana military leave laws, with a few exceptions.
Additional Requirements Under Indiana Military Leave Laws
for Public Employers
Although the Indiana military leave laws and USERRA are very similar, there are a few additional requirements placed on public employers under the Indiana military leave laws that are not required by USERRA. These requirements only apply to public employers.
Military leave granted under USERRA is unpaid1 . However, under the Indiana military leave laws, for public employers only, a “member” is entitled to a paid military leave of absence for any consecutive or nonconsecutive period not to exceed fifteen (15) days in any calendar year if the member meets the following requirements:
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The member is on training duties of the state of Indiana under the order of the governor or commander in chief; or
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Is a member of any reserve component under the order of the reserve component authority.
“Member” refers to a member of the Indiana National Guard; a member of a reserve component; or a member of the retired personnel of the naval, air, or ground forces of the United States.
Conclusion
Due to the similarities between USERRA and the Indiana military leave laws, and given that coverage under USERRA is broader, except for a public employer, an employer will be in compliance with the Indiana military leave laws if the employer complies with the requirements of USERRA. Public employers need to be aware of the requirement in the Indiana military leave laws that certain periods of military leave are paid.
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[1] Keep in mind that although military leave is unpaid under USERRA, there may be Wage and Hour ramifications if an employer makes an improper deduction from an exempt employee’s salary for an absence due to military leave.
The content was last reviewed and updated as necessary on 03/13/08.
Disclaimer: The article is for educational and informational purposes only, is not intended to be legal advice, and should not be used for legal guidance or to resolve legal problems. Transmission or receipt of this article does not create an attorney-client relationship. Anyone reading this article should not act on the information in the article without seeking professional legal advice applicable to his or hew own specific requirements.
