In response to member requests for information, FHCA Labor Relations Consultant Mike Miller, Kunkel Miller & Hament, has provided the following document for distribution.

SUMMARY OF EMPLOYER'S OBLIGATIONS AND EMPLOYEE'S RIGHTS RELATING TO LEAVE FOR MILITARY SERVICE

President Bush's decision to authorize the activation of at least 50,000 military reservists will undoubtedly affect many workplaces throughout the nation. Employers should be aware that federal law prohibits employment discrimination against employees due to their membership or service in the uniformed services ("military service"). The Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §4301 et seq. ("USERRA" or "the Act"), also generally requires reemployment of employees after completion of military service, with some limited restrictions. The Act applies to all employers regardless of size or amount of business. This article will briefly summarize the major provisions of the USERRA.

Leave. The Act provides that an employer may not refuse to allow leave for an employee to serve (voluntarily or involuntarily) in the uniformed services and, after the leave is concluded (with certain limited exceptions), the employer must reemploy the employee as long as the cumulative period of service in relation to that employer has not exceeded five years and the employee has not been dismissed or separated from the uniformed services for other than an honorable discharge. It also is unlawful for an employer to deny initial employment, retention in employment, promotion, or any other benefit of employment based on membership or service in the uniformed services. The employee is required to give advance written or verbal notice to the employer of the need for leave consistent with the facts and circumstances (unless impossible, unreasonable, or precluded by military necessity) and to provide timely notice of their intent to return to work. Employees also must report back to work in a timely manner.

There are different time periods for reporting back to work, depending on the length of the leave. For military service of less than 31 days, the employee must report back either on the first day of the next scheduled work shift after completion of military service (including a period for safe transportation to the employee's residence plus 8 hours) or as soon as possible if reporting on the first day is impossible or unreasonable through no fault of the returning employee. For military service of more than 30 days but less than 181 days, the employee must submit an application for reemployment no later than 14 days after completion of military service or as soon as possible if reporting on the first day is impossible or unreasonable through no fault of the returning employee. In addition, an employee who is returning after more than 30 days of military service can be required to provide available documentation to support the claim that his or her application is timely and that the employee's military status is in good standing. For military service of greater than 180 days, an application for reemployment must be submitted within 90 days after completion of military service. Failure to meet the time periods allows the employer to treat the situation the same as it treats non-military employees with unexcused absences. There are special rules for disabled employees and employees who fell ill or were injured during military service.

Job Protection. If an employee is returning after less than 91 days of military service, the employee is entitled to be placed in the position he or she would have occupied if the leave had not been taken (i.e., any applicable promotion or step-up based on seniority). However, if the employee is not or cannot with reasonable training be qualified for such position, the returning employee is entitled to be placed in the position he or she held at the commencement of leave. An employee returning after more than 90 days of military service has the right to return to the position he or she would have occupied if the leave had not been taken or "a position of like seniority, status and pay" unless the employee is not qualified for such a position after reasonable training. In such a case, the returning employee must be placed in the position he or she held at the commencement of leave or a like position. The employer has an obligation to provide training or retraining as necessary to enable returning employees to qualify for reemployment in any position to which the employee is entitled upon return. For disabled employees, the employer must provide reasonable accommodation unless it results in undue hardship and, in qualifying cases, an equivalent job in terms of "seniority, status and pay" or the nearest approximation thereto. There is a very limited exception to the reemployment right of employees who are returning from military service if the employer's circumstances have changed sufficiently so that reemployment would be impossible or unreasonable. Lastly, the Act provides that an employee returning from military leave cannot be terminated without cause for one year after reemployment if military service was more than 180 days. If service was less than 180 days but more than 30 days, an employee cannot be discharged without cause for at least 180 days after reemployment.

Benefits. USERRA does not require military leave to be paid leave. However, if the employee requests it, an employer must allow an employee to use accrued vacation, personal, or other paid leave. An employer cannot require an employee to use accrued paid leave. An employee on USERRA military leave is entitled to retain the seniority and other benefits that he or she had at the commencement of leave and to accrue such benefits during the leave only to the same extent they are continued for non military leaves of absence. There are special rules for health insurance and pension/retirement benefits. With regard to health insurance, an employee must be allowed to continue coverage for up to 18 months similar to that provided by COBRA. Employers may charge up to 102% of the cost to employees for the coverage. However, if the military service is less than 31 days, the employee cannot be required to pay more than the employee's share. Upon return, the employer must reinstate health insurance coverage without any penalty, waiting period, or exclusion for preexisting conditions (unless the condition was incurred or aggravated by military service). With regard to pension/retirement benefits, the employee on military leave is considered to be continually employed for vesting purposes. In certain circumstances, contributions can be paid by the employer and employee after reemployment.

Enforcement and Remedies. Similar to other non-discrimination statutes, retaliation against an employee for exercising rights under the USERRA is prohibited. An aggrieved employee can file a complaint with the U.S. Department of Labor's Veterans Employment and Training Service (VETS), but this is not a requirement. The employee can sue in federal court, with or without the assitance of the U.S. Department of Justice. Proven violations subject the employer to monetary damages including backpay and benefits, attorneys fees and costs, and double damages for willful violations. The employee also is entitled to reinstatement. For the full text of the USERRA and further information, the employer can consult the website of the National Committee for Employer Support of the Guard and Reserve (an agency of the Government under the Assistant Secretary of Defense for Reserve Affairs) at www.esgr.org or call their toll free number 1-800-336-4590. In addition, general information on USERRA also is available at the U.S. Department of Labor's website at www.dol.gov.