John D. Finerty, Jr.
On March 10, 2005 the Department of Labor issued a new regulation that requires employers to post a notice describing an employee’s rights, benefits and obligations under the Uniformed Services Employment and Re-employment Rights Act or "USERRA."
USERRA is the federal law that provides employment and re-employment rights to employees who leave their jobs, voluntarily or involuntarily, to serve in the military. This includes Reserve and National Guard service.
Under the new rule, the notice must inform employees of their obligations to request leave, their rights to reinstatement, and their rights to be free from discrimination and retaliation in benefits, discipline, and terms and conditions of employment. The notice must also inform the employees of their rights to health insurance coverage during the period of a military leave, and upon reinstatement.
Employers can obtain a poster free of charge by accessing the DOL’s Web site (PDF). Employers may also order free printed copies by calling toll free at 1-866-4-USA-DOL (1-866-487-2365).
The Department has indicated it will not penalize employers that failed to post the USERRA notice by March 10, 2005, but it does want prompt compliance. The notice must be posted where employee notices are customarily posted, such as near OSHA, FMLA or State Unemployment Compensation postings.
As an alternative, however, employers are allowed to distribute the notice to employees by hand, mail or e-mail. Employers that elect one of these alternatives should make sure new employees hired after distribution of the notice are also given a copy.
Legal Requirements of Military Leave
- Notification: Employees or a military officer must give employers advance notice of military leave. The notice does not have to be in writing and there is no strict definition of "timely notification," so a phone call the night before a deployment may satisfy this requirement. If advance notice is important, consider reminding employees that the company needs immediate notice; then give them a way to contact the company 24 hours a day.
- Length of leave: Once notified, employers must place a worker on a military leave of absence or other appropriate type of leave. Employees are allowed up to 5 years of cumulative military leave. Therefore, employees who served previously in the Gulf War, for example, may have less than 5 years of leave remaining. Review personnel records of affected employees now so you can inform employees on the amount of leave they have left.
- Pay during military leave: Military leave can be unpaid. Some employers, however, pay reservists the difference between their regular wages and military compensation.
- Vacation benefits: USERRA allows employees on military leave to use any vacation or other paid leave in lieu of unpaid leave. That decision is the employee’s choice, so employers cannot require workers to use vacation time, sick leave or personal days during military leave.
- Health benefits: Companies that provide health insurance benefits must allow National Guard and Reservists who are called for duty to purchase COBRA-like health insurance while they are on leave. COBRA requires companies to allow former employees and their dependents to pay for continued insurance coverage for up to 18 months.
Companies with fewer then 20 employees are normally not covered by COBRA, but USERRA overrides COBRA. Therefore, all employers, regardless of size, must offer health insurance continuation options for Reservists or National Guard members called to active service.
Replacement employees: Employers may fill vacancies legally while employees are on military leave.
- Re-instatement to employment: USERRA requires employers to "promptly" rehire workers who make "timely application" to their previous jobs. Reinstatement must be without any loss of seniority or benefits.
Exceptions to USERRA
USERRA job protections have exceptions for some employers. For example, changed circumstances in the business may make rehiring an employee impossible or unreasonable, such as when a reduction-in-force would have included the individual regardless of military duty. Employers are also excused from rehiring returning service members, or from accommodating those who sustained disabilities during service, when the difficulty or expense would cause "undue hardship." This exception is essentially the same as under the Americans with Disabilities Act. Lastly, temporary employees, or workers whose terms would have expired during leave, are also not entitled to reinstatement.