 |
 |
 |
Military Leave Under the Uniformed Services
Employment and Reemployment Rights Act
In light of the
recent tragic events
in our country, some
of your employees
may be facing a call
up to military duty.
To help you better
understand military
leave issues, we
have outlined them
for you.
Significant changes
in the law since the
last major call to
arms in 1991 have
left many employers
wondering how to
comply with
military-related
leave and
reemployment
requirements. In
1994, President
Clinton signed the
Uniformed Services
Employment and
Reemployment Rights
Act (“Act”) into
law. Under the Act,
employers cannot
deny initial
employment,
reemployment,
retention in
employment,
promotion, or any
benefit of
employment on the
basis of an
employee’s
performance of
military service,
application for
service, or
obligation vis-à-vis
uniformed service.
The Act applies to
National Guard
obligations as well
as other branches of
military service.
Reemployment Rights
Of Employees On
Military Duty
Reemployment rights
change with the
amount of leave time
away from
employment.
Employees on
military duty 90
days or less are
entitled to the
position the
employee would have
attained if
continuously
employed (termed the
“escalator”
position), provided
the employee is
qualified for the
“escalator”
position. Employers
must use “reasonable
efforts” to qualify
the employee for the
escalator position.
If the employee is
not qualified for
the “escalator”
position, then you
must reinstate the
employee to the
position she
originally left.
Employees on
military duty more
than 90 days are
entitled to the
“escalator”
position, or a
position of like
seniority, status
and pay to the
“escalator” position
provided the
employee is
qualified. If the
employee cannot
qualify for these
positions after
using “reasonable
efforts”, then the
employer must
reinstate the
employee to her
original position,
or a position of
like seniority,
status and pay.
Also, if for any
reason an employee
on military duty
over 90 days cannot
become qualified for
either the escalator
position or the
original position
(other than because
of disability), the
employee must be
employed in any
other position of
lesser status and
pay, with full
seniority.
Reemployment rights
under the Act are
not without
limitation. Where
the total time of
all military
absences exceeds
five years with an
employer, the
employee loses her
right to
reemployment with
that employer. Also,
an employer does not
have to reemploy an
employee where: 1)
the employer's
circumstances have
so changed as to
make such
reemployment
impossible or
unreasonable, 2) in
circumstances where
such employment
would impose an
undue hardship on
the employer; or 3)
the position was
temporary and
nonrecurring and
there is no
reasonable
expectation that
such employment will
continue
indefinitely or for
a significant
period. The employer
has the burden of
proving these three
conditions exist.
Other Protections
and Benefits
The Act also
guarantees
employment upon
returning to work.
An employee who is
reemployed following
military service
cannot be discharged
from employment,
except for cause: 1)
within 1 year after
the date of
reemployment if that
employee’s service
was 181 days or
more; or, 2) within
180 days after the
date of reemployment
if such service was
31 days or more but
less than 181 days.
Also, during any
period of military
service, an employee
may, upon request,
use any vacation,
annual leave, or
similar leave with
pay, that are
accrued before
military service.
Health Benefits
Protections
Employees on
military leave are
entitled to continue
health coverage for
themselves and their
dependents. The
maximum period of
coverage is the
lesser of: 1) the 18
month period
beginning on the
date on which the
employee’s absence
begins; or 2) the
day after the date
on which the
employee was
required to apply
for or return to a
position or
employment and fails
to do so.
An employee who
elects to continue
health plan coverage
may be required to
pay up to 102
percent of the full
premium under the
plan, except an
employee on active
duty for 30 days or
less cannot be
required to pay more
than the employee’s
share for the
coverage. Also, once
an employee is
reinstated, the
employer cannot
impose an exclusion
or waiting period on
the reinstatement of
coverage if one
would not have been
imposed had coverage
not been terminated.
However, an
exclusion or waiting
period may be
imposed for coverage
of any illness or
injury caused by the
performance of
military service.
Pension Benefits
Protections
An employer must
maintain the
employee’s pension
benefit plan during
the employee’s
military leave as if
the employee never
left, including
making employer
contributions to the
plan. Upon
reemployment, an
employee has three
times the period of
military service,
but not to exceed
five years after
reemployment, within
which to contribute
the amount she would
have contributed to
the pension benefit
plan if she had not
been absent.
Employee’s
Requirement To
Notify Employer Of
Military Leave
Employees are
entitled to
reemployment
benefits as long as
the employee has
given advance
written or verbal
notice to the
employer. However,
no notice is
required if
prevented by
military necessity
or where the giving
of notice is
impossible or
unreasonable.
Employee’s
Obligation to Notify
Employer of Return
to Work
The Act sets
specific timetables
for the employee to
report back to work
after her military
leave has ended.
Where an employee is
absent for less than
31 days, the
employee must report
to the employer no
later than the
beginning of the
first full regularly
scheduled work
period on the first
full calendar day
following the
completion of
military service
plus an additional
eight hours. This
requirement is
waived if reporting
is impossible or
unreasonable through
no fault of the
employee.
Where an employee is
absent for more than
30 days but less
than 181 days, the
employee must submit
an application for
reemployment with
the employer not
later than 14 days
after the completion
of the period of
service, provided it
is possible or
reasonable under the
circumstances. Where
an employee is
absent more than 180
days, the employee
must submit an
application for
reemployment with
the employer not
later than 90 days
after the completion
of the period of
service.
Cureton Caplan
Analysis
Any employer who
receives a request
for military leave
needs to be aware of
the Uniformed
Services Employment
and Reemployment
Rights Act and
comply with it. The
notification
provisions were
written into the Act
to allow employees
to plan for military
leave events;
Therefore, you
should make your
employees aware of
the notice
requirements and
that you expect them
to comply with the
requirements so that
you are not caught
off guard by such
requests.
The most appropriate
forum for conveying
military leave
information is the
employee handbook or
manual. Make sure
that your handbook
is up to date
generally, and
specifically, check
your military leave
policy to see if it
complies with state
and federal law.
Feel free to contact
Cureton Caplan with
any questions you
may have, or visit
our website at
www.curetoncaplan.com.
Note: The material
included herein is
for informational
purposes only and is
not offered as a
substitute for legal
advice on any
matter. Because
every legal matter
is unique and varies
depending upon
specific facts and
law, do not act or
refrain from acting
based upon this
information without
obtaining the advice
of a qualified
attorney.
|
|
|
|
|
|
|
|
