The Department of Labor’s Veterans Employment and Training Service (VETS) recently released a fact sheet outlining how the Uniformed Services Employment and Reemployment Rights (USERRA) may apply during the COVID-19 pandemic. There have been no changes to the law, but the benefits the law offers may be of particular importance to Guard and Reserve members called up to protect the health and well-being of citizens in this time of need.
The following is a condensed version of some USERRA provisions. Links are provided below for complete details, or call the VETS toll-free helpline at 1-866-4-USA-DOL (1-866-487-2365) from 8 a.m. to 8 p.m. Eastern.
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USERRA guarantees an employee returning from military service or training the right to be re-employed at his or her former job (or as nearly comparable a job as possible) with the same benefits. USERRA applies to virtually all employers, regardless of size, including the federal government.
VETS interprets and provides guidance on USERRA, and investigates complaints filed under this law.
Re-employment rights extend to persons who have been absent from a position of employment because of service in the uniformed services. “Service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service, including:
- Active duty and active duty for training
- Initial active duty for training
- Inactive duty training
- Full-time National Guard duty
- Absence from work for an examination to determine a person’s fitness for duty
- Funeral honors duty performed by Guard-Reserve members
- Duty performed by employees of the National Disaster Medical System (NDMS)
For the purposes of USERRA, uniformed services consist of the following:
- Army, Marine Corps, Navy, Air Force, and Coast Guard
- Army Reserve, Marine Corps Reserve, Navy Reserve, Air Force Reserve, and Coast Guard Reserve
- Army National Guard and Air National Guard
- Commissioned Corps of the Public Health Service
- Anyone designated by the president in time of war or emergency
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The law requires employees to provide their employers with advance notice of military service, with some exceptions. Notice may be either written or oral. It may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving.
USERRA re-employment rights apply if the cumulative length of service that causes a person’s absences from a position does not exceed five years. Most types of service will be counted in the computation of the five-year period. There are some exceptions, of course, and an employer has the right to request that a person who is absent for a period of service of 31 days or more provides documentation.
Your service disqualifies you for USERRA in these four circumstances:
- Separation from the service with a dishonorable or bad conduct discharge.
- Separation from the service under other than honorable conditions.
- Dismissal of a commissioned officer involving a court martial or by order of the president in time of war.
- Individual absent without authority for more than three months or is imprisoned
To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. These time limits for returning to work depend (with the exception of fitness-for-service examinations) on the duration of a person’s military service.
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A person whose military service lasted 1 to 90 days must be “promptly reemployed” in the following order of priority:
- (A) In the job you would have held had you remained continuously employed, so long as you are qualified for the job or can become qualified after reasonable efforts by the employer, or
(B) in the job in which you were employed on the date of the commencement of the service in the uniformed services, only if you are not qualified to perform the duties of the position referred to in subparagraph (A) after reasonable efforts by the employer to qualify you.
- If you cannot become qualified for either position described in (A) or (B) above (other than for a disability incurred in or aggravated by the military service) even after reasonable employer efforts, you must be re-employed in a position that is the nearest approximation to the positions described above (in that order) which you are qualified to perform, with full seniority.
Re-employed servicemembers are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed. An important point given the current economic situation that’s made in the recent, coronavirus-themed fact sheet: A National Guard or Reserve member can lose their job after returning from service “if it is reasonably certain that he or she would have been furloughed or laid off had he or she not been absent for uniformed service.”
The law provides for health benefits continuation for persons who have coverage under a health plan in connection with their employment who are absent from work to serve in the military.
Servicemembers must, at their request, be permitted to use any vacation leave that had accrued before the beginning of their military service instead of unpaid leave. However, service members cannot be forced to use vacation time for military service.
Repayment of employee retirement contributions or elective deferrals attributable to the period of service can be made over three times the period of military service but no longer than five years from the date of reemployment.
Under USERRA, a re-employed employee may not be discharged without cause: (1) For one year after the date of re-employment if the person’s period of military service was for 181 days or more; (2) For 180 days after the date of re-employment if the person’s period of military service was for 31 to 180 days.
Cause for discharge may be based on conduct or the application of legitimate nondiscriminatory reasons. Persons who serve for 30 or fewer days are not protected from discharge without cause. However, they are protected from discrimination because of military service or obligation.