Member Article

As a veteran of the United States Marine Corps and someone who has seen the challenges that veterans face firsthand, I can attest to the benefits of giving veterans an opportunity to return to work following periods of service and providing families with the opportunity to manage the needs of their servicemembers. At Spilman, we feel that employers should adhere to best practices guidelines and prepare to implement and facilitate such enforcement.Since our country just celebrated Veterans Day, it is fitting to review the laws that govern the hiring and employment of servicemembers, whether they are on active duty, reservists, or retired, and ensure that businesses are compliant.USERRAThe Uniformed Services Employment and Reemployment Rights Act (“USERRA”) was enacted to grant rights to employees when theiremployment is interrupted by a period of service andupon their returning to employment after serving in the uniformed services.No employer may deny a person initial employment, reemployment, retention in employment, promotion, or any benefit of employment based on the person’s membership, application for membership, performance of service, application to perform service, or obligation for service in the uniformed services.Who Does USERRA Apply To? USERRA applies to all employers, regardless of size, that do business in the United States. It covers almost all military service, whether it is voluntary or involuntary, during peacetime or wartime, or recall to active duty or a reserve component. However, National Guard duties performed under state law are an exception (e.g., call-up by a State Governor for a natural disaster) and are generally governed at the state level.What Notice Does USERRA Require?Prior to departure for service, USERRA requires that an employee give the employer notice of the anticipated period of service and absence from work. Although there is no express time requirement for when such notice must be provided, the Department of Defense “strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure, when feasible.” Notice can be written or oral.How Does USERRA Regulate Vacation or Paid Leave?During the course of uniformed service, the employee must be permitted, but cannot be required, to use accrued vacation or similar paid leave while performing military service.What Are USERRA’s Requirements Regarding Health Care Coverage?Service Up to 24 Months

• Upon request, during an absence for military service of up to 24 months, an employee and any previously covered dependents are entitled to continuation of their health care coverage under an employer sponsored health plan.

Service Less Than 31 Days

• If the period of service is less than 31 days, the employee can only be required to pay the employee’s normal share, if any, for the cost of coverage.

Longer Periods of Service

• For longer periods of service, the employee may be required to pay up to 102 percent of the full premium under the plan.
• When an employee returns from service, health insurance coverage must be reinstated without a waiting period or exclusions except those that would ordinarily apply for regular employees.

How Does USERRA Handle Reemployment?Upon return from a period of service, a servicemember must be reemployed promptly. Returning employees also are entitled to any promotion he or she would have received if the returning employee’s employment had not been interrupted, so long as the individual is qualified to perform the duties for this position. Otherwise, reemployment is in the position that the servicemember was employed when the uniformed service leave began.Where the period of service is more than 90 days, the employer has the option of returning the servicemember to a position of like seniority, status, and pay to that the individual would have held. Where there is doubt, the bottom line for employers is that USERRA expects employers to reemploy servicemembers to the same position they would have attained but for the military absence. Seniority, status and pay must also be commensurate with such position.How Does USERRA Handle Discharging an Employee?Important limitations apply to performance reviews and employment decisions after reemployment.Service More than 181 Days

• Upon reemployment, employees may only be discharged with “cause” for one year after reemployment if the period of service was more than 181 days.

Service 31 to 180 Days

• If the period of service was for 31 to 180 days, an employee may not be discharged without “cause” for 180 days after reemployment.

Service Less than 31 Days

• Employees who serve less than 31 days have no “for cause” protection rights.
• If the returning employee is discharged during the “protected period,” the employer has the burden to prove that the discharge was “for cause.”
• While reductions in force and/or layoffs can constitute “cause,” the employer must establish that the job would be eliminated or the employee laid off regardless of the military service.

FMLAIn addition to USERRA, the Family and Medical Leave Act (“FMLA”) also affords special protections for military members and their families.What is Qualifying Exigency Leave?The FMLA, which applies to employers with at least 50 employees, provides qualifying exigency leave for up to 12 workweeks in order to help families manage their affairs when a military member has been deployed to a foreign country. Qualifying exigency leave is available when the son, daughter, spouse, or parent of an employee is on or has been notified of an impending call to covered active duty. Covered active duty includes the deployment of a servicemember to a foreign country in support of a contingency operation.When Can an Employee Take Qualifying Exigency Leave?An eligible employee who is related to a servicemember may take qualifying exigency leave for:

• a short-notice (seven days or less) deployment;
• military events and related activities,
• childcare and school activities;
• financial and legal arrangements;
• non-medical counseling;
• care of the military member’s parent who is incapable of self-care;
• rest and recuperation leave (up to 15 days); and
• post-deployment activities (for a 90-day period).

For qualifying exigency leave, an employer may require an appropriate certification with a copy of the active duty orders for the military member and a qualifying exigency certification (Form WH-384). Additionally, an employer may verify the military events with a third-party and may contact the Department of Defense to confirm active duty status.What is Military Caregiver Leave?The FMLA also provides military caregiver leave as a means to help families care for covered servicemembers with a serious injury or illness for up to 26 workweeks in a single 12-month period, provided the employee is the covered servicemember’s spouse, parent, child, or next-of-kin. For purposes of military caregiver leave, a covered servicemember means:

• A current member of the Armed Forces, including a member of the National Guard or Reserves undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; and
• A veteran of the Armed Forces undergoing medical treatment, recuperation, or therapy for a serious injury or illness and was discharged under conditions other than dishonorable within the five-year period before the employee first takes military caregiver leave.

For military caregiver leave, a serious illness is an injury or illness that the servicemember incurred in the line of duty, was aggravated by service in the line of duty, or that might cause the servicemember to be unfit to perform the duties of his or her office, grade, rank, or rating.If you have any questions about this employment issue, please contact ourLabor & Employment Practice Group.