Over the last few years, the types of employees called to military service have ranged from hourly part-time workers to company CEOs. In order to keep operations running, employers have had to adjust their work forces by transferring, training and reassigning other employees to positions left open by a departing service member.
So what is an employer to do when employees on a military leave are ready to return to work?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the federal law that mandates military leaves of absence be given to employees called to serve in the Uniformed Services. USERRA sets forth the following military service rights and obligations of both employers and employees concerning leaves and requests to return from leaves.
- Notice of leave. An employee who is performing military service must give advanced written or verbal notice to the employer when applicable.
- Intent to return. An employee desiring to return to a civilian job is required to give notice to the employer of his or her intent to return to work. The type and timeliness of this notice depends upon the length of military leave.
- Reinstatement rights. USERRA offers job protection to employees returning from a military leave under a variety of circumstances. For example, USERRA may provide for just cause employment, re-employment to a prior or similar position or training or retraining.
- Health benefits. USERRA provides for health plan continuation for persons who are absent from work to serve in the military and their dependents, even if their employers are not covered by COBRA.
- Waiting periods. Upon re-employment of the service member, a waiting period or exclusion cannot be imposed upon reinstatement of health plan coverage of any person whose coverage was terminated by reason of the military service, unless an exclusion or waiting period would have been imposed absent the military service.
- Retirement plans. Any retirement plan, such as a defined benefit pension plan, defined contribution plan, 401(k) plan, profit-sharing plan and multiemployer plan is subject to USERRA's special service crediting and contribution rules under which an employer will have to make up contributions missed during the period of service.
- Posting requirements. Effective March 10, 2005, the Veterans' Benefits Improvement Act of 2004 requires all employers to post a notice describing the rights, benefits and obligations of the employee and the employer under USERRA. This notice will be provided by the secretary of labor.
- Discrimination. Employment discrimination because of past, current or future military obligations is prohibited. This includes decisions based on hiring, promotion, re-employment, termination or benefits.
- Retaliation. USERRA prohibits employers from retaliating against anyone who files a complaint under the law; who testifies, assists or otherwise participates in an investigation or proceeding under the law; who exercises any right provided under the law; and whether or not the person has performed military service.
An employer will likely be faced with numerous issues when an employee requests to return to work after a military leave. Each situation will require a separate determination as to what the law will entail for a particular employee.
When faced with an employee's request to return to work, an employer should be sure to request and obtain all necessary information from the employee and, when necessary, obtain proper legal advice.
Jack VanHoorelbeke is a labor and employment relations attorney in Dickinson Wright's Detroit office. For additional information, visit www.dickinsonwright.com.