Military Leave For Employees
Now, more than ever, employers and employees are faced with the difficult circumstance of interrupting employment to serve in the United States Armed Forces. This outline serves as an overview of employer obligations towards employees embarking on military duty, all of which is governed by the Uniformed Services Employment Reemployment Rights Act of 1994 (“USERRA”) and state law. USERRA requires employers to reemploy, with accrued seniority, eligible employees who have taken leave of employment to serve in the military for service of more than 30 days but less than 181 days, the employee must submit an application for reemployment within 14 days of her release from service.
Upon return from duty, the eligible employee is entitled to accrued seniority, as if continuously employed. In addition, an employee who was on duty from 31 to 180 days may not be discharged for a period of 6 months except for just cause.
Under USERRA, individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 18 months, though the employer may require they pay up to 102% of the full premium. The right to health care coverage ends on the day after the deadline for the employee to apply for reemployment or 18 months after the absence from the civilian job began, whichever comes first.
USERRA requires employers to allow service members to use earned vacation credits while absent for service, if requested by the employee. An employer may not require the use of vacation for a service absence, unless the absence coincides with a period, such as a plant shutdown, when all employees are required to take vacation.
Service members are not entitled to vacation accruals, that is, the retroactive receipt of vacation time. For example, a person returning from three years of service may have passed a time benchmark where that person is now entitled to build vacation at an increased rate (e.g., from one week a year to two weeks per year), but that person would not return to find three years back vacation waiting.
A returning service member is entitled to all general across the board pay raises that he or she would have received but for the absence for military service. It does not matter if the raises result from a collective bargaining agreement or employer policy. Where the rate of pay is an attribute of position, the returning service member is entitled to the current rate of the entitled position.
To the extent that Paige’s Music offers other non-seniority benefits (e.g., holiday pay or life insurance coverage) to employees on furlough or a leave of absence, the Paige’s Music must provide those same benefits to an employee of similar seniority, status and pay during a period of military service because USERRA treats the individual as being on furlough or leave of absence while serving. If Paige’s Music’s treatment of employees on leaves of absence varies according to the kind of leave (e.g., jury duty, educational, etc.), the comparison should be made with your most generous form of leave, after taking into consideration the comparable period of leave.
1 In order to have reemployment rights following a period of service in the uniformed services, a military member must: (a) hold a civilian job; (b) inform her employer that she is leaving the job for service in the uniformed services; (c) not serve more than five years (cumulative); (d) be released from service under “honorable conditions”; and (e) report back to her civilian employer in a timely manner or have submitted a timely application for reemployment.