Members of the Army National Guard from Western Virginia recently have been called to active duty and, after a period of training, will be deployed to Iraq and Afghanistan.
These Guard members and their employers should be mindful of their respective employment rights and obligations. Guard members who are called to federal active service are protected by the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), which ensures that eligible Guard members are not punished for their military service.
Eligible employees are entitled to take up to five years of leave if they must miss work because of military service obligations. Eligible employees also receive certain benefits while on leave and have reemployment rights at the end of their leave. USERRA provides these benefits to full-time, part-time, temporary, probationary, and seasonal employees who are called to active military service. USERRA’s protections do not, however, apply to “brief, non-recurrent” positions where there is “no reasonable expectation of continued employment”. To take advantage of these protections, employees should notify their employers of the need for leave as soon as reasonably possible.
An employer is not required to pay employees on military leave; however, employees may elect to use available paid vacation while they are on leave. During their leave, employees are entitled to continue employer-provided health insurance for up to twenty-four months. If the leave is thirty days or less, the employer must continue to pay its portion, if any, of health insurance premiums. If the leave is more than thirty days, the employee is required to pay the entire premium.
Employees who desire reemployment must provide timely notice to their employer at the end of their active service. The longer the period of service, the more time an employee has to notify his or her employer of an intention to return to work. Employees who do not return to work within the required timeframe do not automatically lose their reemployment rights. Instead, they become subject to discipline under their employer’s attendance and absenteeism policies. There are certain rare circumstances when an employer can deny reemployment, such as when a change of circumstances makes reemployment unreasonable or when an employee’s disability makes it impossible for the employee to perform his or her job duties.
An employee returning to work must be placed in an appropriate job as soon as possible, but no later than two weeks after applying for reemployment. Under USERRA’s “escalator principle”, a returning employee is entitled to the job position, salary, and benefits that he or she would have attained had he or she remained continually employed during the period of the military leave. The returning employee must be afforded promotions, pay raises, and benefits that are based on seniority (such as a step increase or retention bonus based purely on length of service). A returning employee is not entitled to receive credit for benefits that are based on factors other than seniority, such as benefits that are based on work performance, unless the employer also makes those benefits available to employees who are on non-military leaves of absence. Whether the employee continued health coverage during the period of leave or not, the employer must promptly reinstate any employer-provided health coverage upon reemployment.
An employer also is obligated to treat a returning employee’s retirement benefits as if the employee remained continually employed during the military leave for purposes of participation, vesting and accrual of benefits. An employer who makes retirement contributions that are not contingent upon employee contributions must make-up any missed contributions within ninety days of the employee’s return to work. Where the employer’s contribution is contingent upon employee contributions, such as with a typical 401(k) plan, the employee has an extended grace period after reemployment to make-up his or her contributions to the plan, and the employer must make its matching contributions accordingly.
Once reemployed, employees that have been on leave for thirty-one or more days may not be terminated except for cause for one year after the date of reemployment. Thus, even an at-will employee will have job protections for a year after he or she returns to work.
USERRA provides a number of protections for employees who are called to federal active service. Similar protections exist under state law for members of the National Guard who are activated for state service. Employees should be aware of these rights to make sure they receive the benefits to which they are entitled. It is incumbent upon employers to also be aware of their obligations so that Guard members receive the benefits to which they are entitled for their service.
Also available at The Roanoke Star Sentinel