March 2009 HR Helpline FAQ on
the Uniformed Service Employment and Reemployment Rights Act (USERRA)
Q. What is USERRA?
A. The Uniformed Services Employment and Reemployment Rights Act protects the rights of those who leave employment to serve in the military. Returning veterans are entitled to the same status, seniority, pay, and other benefits they would have earned had their employment not been interrupted.
Q. Who is required to comply with USERRA?
A. All private employers, as well as all federal, state, and local government, regardless of the number of employees.
Q. I’ve heard of the escalator principle, can you explain it?
A. The escalator principle means that employees are not only entitled to the same pay, seniority, status, and benefits that they had when they left for military service, but that they need to receive the same rights and benefits as though they had never left and would have continued to gain greater benefits, status, pay, and seniority due to continued service.
Q. Are employees covered under USERRA if they volunteer to go to training or active duty?
A. Individuals in the uniformed services receive the same reemployment and seniority protections regardless of whether their service is on a voluntary or involuntary basis, or whether it involves active duty, training, inactive duty, fitness for duty exams, funeral honors duty, or other required military activities.
Q. Does an employee have to show their employer their military orders in order to qualify for the leave under USERRA?
A. The employee must give advance written or oral notice to their employer that they will be leaving the job for training or service when possible. There are circumstances in which giving notice is impossible or unreasonable. Employers must be careful not to deny a returning employee reemployment due to inadequate notice without checking for legal exceptions first. Employees are not required to show their military orders to their employer when notifying them of their military leave. They only are required to show their orders upon return back at the conclusion of the leave.
Q. Can you require use of accumulated vacation?
A. For a period of military service, the employee may elect to use any personal accrued vacation. The employer cannot require use of vacation. Vacation does not accrue during a period of military service unless the employer provides this as a benefit for employees on a nonmilitary, non-pay leave of absence of similar duration.
Q. How long a leave of absence are employees eligible for under USERRA?
A. Employees returning from military service receive all reemployment and seniority protections as long as the cumulative length of absence from their employer for military duty does not exceed five years. However, employers must be aware that certain types of service cannot be counted towards this five-year period. Some examples:
- some military specialties that require an initial obligation of more than five years,
- two-week annual training for reservists,
- times of war or national emergency,
- if a Navy member would be at sea when his five years expire, making him unable to obtain a release.
Q. How quickly does an employee need to report back to work after returning
home from military service?
A. Employees who have served 1 – 30 days must return no later than the beginning of the first scheduled shift after allowing for travel and 8 hours of rest.
Employees who have served 31 - 180 days must apply for reemployment within 14 days after completing military service.
Employees who have served more than 180 days must apply for reemployment with 90 days after completing military service.
Reporting deadlines are extended up to 2 years for those hospitalized or recovering from an illness or disability incurred during military service. A few exceptions may allow for an extension of that period also.
Q. Is there any reason why an employee could be disqualified for re-employment under USERRA?
A. An employee may be disqualified from re-employment if they receive a dishonorable or bad conduct discharge, were dismissed by court-martial, or dropped from military rolls due to absence without authority for more than 3 months or by civilian imprisonment.
Q. What provisions must be made for health insurance coverage under USERRA?
A. If the period of service is 30 days or less, normal employee cost pertains for the coverage. USERRA provides that the individual may elect to continue employer-provided health insurance for a period up to the first 24 months of military service. If the period of service is 31 days or more, could be required to pay up to 102 percent of the total premium to cover employer unique processing.
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