AICPA Insurance Programs

Employers should be aware of their rights and responsibilities regarding employees in the military reserves. The Uniformed Services Employment and Reemployment Rights Act (USERRA) governs the employment and reemployment rights of all federal uniformed service members and requires both private and public employers to provide employees with leave to serve in the military. USERRA also requires employers to reinstate employees returning from military leave.

General Guidelines and Requirements:

1. All public and private employers, and their successors, must provide military leaves of absence to employees who must fulfill their military obligations.



2. Under USERRA, reemployment rights and benefits extend to all employees who must miss work to fulfill their commitment in the uniformed services. These services include the Army, Navy, Air Force, Marines (and the reserve units of the foregoing), the Army National Guard, the Air National Guard, full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of individuals the President may designate in a time of war or national emergency.



3. "Service in the uniformed services" under USERRA includes active duty, active duty for training, initial active duty for training, full-time National Guard duty, and absence from work for an examination to determine an individual's fitness for any of the above types of duties.



4. The employee or an appropriate military officer must give the employer advance notice (either written or oral) of the leave. No notice is required, however, if military necessity prevents the giving of notice or such notice is otherwise impossible or unreasonable.



5. The cumulative length of service that causes a person's absence cannot exceed five years, with certain exceptions, including service under an order to remain on active duty because of a war or national emergency declared by the President or Congress.



6. An employer cannot dictate either the frequency or length of military leave taken by its workers. Additionally, an employer cannot require employees to use earned vacation while performing military duty.



7. USERRA does not require employers to pay employees while they are absent on military duty. However, under the Fair Labor Standards Act, if employees are salaried and exempt, and are absent for less than a full week, they must still be paid their full salaries.



8. Depending on the length of leave, returning veterans must be reinstated either to the position they would have attained, their former position, or one with similar seniority, status, and pay.



9. Veterans must reapply or report back to work within certain time limits, anywhere from eight hours to 90 days after completion of service, depending on length of service. Reemployment rights are not automatically forfeited if the person fails to report to work or reapply within the required time limits, but the person will be subject to the employer's rules governing unexcused absences.



10. Veterans returning from active duty, once reinstated, cannot be fired except for cause for a period of one year if the service period was more than 180 days or for six months if the service period was more than 30 days. This includes employees who are employed at-will.



11. Benefits that normally accumulate during other types of leaves must also accumulate during military absences, in keeping with company policy.



12. Under USERRA, all employer health care plans must make immediate provision for continuing health care coverage to any employee (and his or her dependents) where (1) they were participants in the plan immediately before the uniformed leave of absence, and (2) the employee's absence was due to a uniformed service leave.

This applies even to employers who are not covered by COBRA. (COBRA is a federal law that helps workers and their families keep their group health coverage during times of voluntary and involuntary job loss, and transition between jobs; employers with fewer than 20 employees are exempt from COBRA.) Unlike COBRA, the right to continuation of coverage applies to all health plans not just to group health plans. Specific states may have statutes that provide greater or different protection for members of the uniformed services.

By Tom Garwood, a Partner with Ford & Harrison LLP, a national labor and employment firm representing management exclusively. www.fordharrison.com