Employers public and private, big and small, need to be aware of their obligations when Uncle Sam calls their employees into the nation’s service.
Given the tragic events of Sept. 11, National Guard and military reserve units are either on high alert status or have already been called into active service.
Employers should do some careful planning, formulate a policy for consistency in dealing with military leave situations and be prepared to deal with the unexpected as part of their patriotic duty.
Under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), employees who must take a leave of absence for active or reserve duty in the United States Armed Forces, Coast Guard, National Guard or Reserves as a result of a time of war or national emergency have certain protections. These protections also apply to military training and service during peacetime, but compliance becomes more difficult when there is a big military mobilization.
USERRA guarantees that employees who take leave for military service will have certain protections, including, in most cases, the right to return to their former jobs when their military service is completed, continuation of group health insurance and other benefits while they are on military leave and freedom from discrimination both before and after military service. Many employers choose to voluntarily pay or partially pay employees who are on military leave, but are not obligated to do so.
Here are some general guidelines with which employers should be familiar:
* Responding to requests for leave. Upon receipt of orders for active or reserve duty, an employee must immediately notify his or her employer. Employers have no choice but to permit the employee to take leave in those circumstances. Sometimes, the employee can’t provide much advance notice. In those cases, employers are obligated to cope with the situation as best they can.
* Continuation of benefits. USERRA guarantees COBRA-like continuation health care coverage. If an employee’s group health benefits would terminate because the employee must take leave for military service, the employee may elect to continue the group health care coverage for up to 18 months.
The employee may be required by the employer to pay the entire premium for group coverage after 30 days. Again, this is often an area where employers pitch in and help by subsidizing coverage for employees while they are serving their country. Pension and retirement plan rights continue while an employee is on military leave.
* Returning to work after military leave. Employees who give prompt notice of their intention to return to work after military service must be reinstated to their former positions. If the employee would have been promoted into a better position had it not been for the leave, the employer must put that person into the higher position upon his or her return.
In either case, the employer is obligated to make every effort to supply the employee with the necessary training and make other reasonable efforts to ensure the returning employee is qualified for the position.
If an employee has been gone for fewer than 90 days, he or she has an absolute right to return to the same job. If the leave exceeds 90 days, the employer must place the employee in the same job or an equivalent job with equal seniority, status and pay.
After returning, employees who have been on military leave are protected against job loss for up to one year, unless the employer has just cause to terminate an employee’s job during that time period. This period of job protection varies depending on the length of the employee’s absence.
Because of USERRA, employees who are called to active duty can be assured their interests are equally protected during and after times of war or national emergency and during peacetime service. USERRA contains enforcement provisions that can be activated by the employee or by the U.S. Department of Labor, and employers who violate it can be liable for back pay, attorneys fees and punitive damages.
Because the statute is complicated, employers are well-advised to review specific situations with legal counsel.
Bonnie O’Neil is a partner in Thompson Hine LLP’s Labor and Employment group. She focuses her practice on the representation of management in employment litigation, including defense of employment discrimination and sexual harassment cases, wrongful discharge cases, discipline and contract arbitrations and proceedings before administrative agencies. She can be reached at 469-3231 or [email protected].
