Military Leave
In 1994, the federal government passed the Uniformed Services Employment and Reemployment Rights Act (USERRA). The act states that anyone in the "uniformed services" (Army, Air Force, Marines, Navy, Coast Guard, Air and Army National Guard and the Commissioned Corps of the Public Health Service) is eligible for military leave.
The law then defines military service as including the performance of duty whether it be voluntarily or involuntarily, which can include active duty, active or inactive duty for training and full-time National Guard duty.
If my employee goes on military leave, do I have to continue paying his health care coverage?
The answer depends upon how long the leave lasts. If the military leave is less than 31 days, coverage must continue and the employee may not be required to pay more. Employees whose service goes beyond 31 days may elect COBRA coverage.
TIP: Employees returning from military service are exempt from any waiting periods to reestablish health care coverage, and any preexisting condition that is a result of their military service may not be excluded from coverage.
What rights do employees returning from military duty have with respect to their position?
If the leave from work was for 90 days or less, the employee has to be given back her position as if her employment had been continuous. If the position has changed, the returning employee must be given a reasonable amount of time to upgrade her skills in order to qualify for reemployment. "Reasonable efforts" must be made by the employer to assist the employee in upgrading those skills.
If the leave was more than 90 days, the employee has to be reinstated into his or her prior position or into a position of like seniority, status and pay, so long as the employee is qualified. As in the prior scenario, the employer must make reasonable efforts to ensure the returning employee qualifies for the position.
I need to schedule my workforce in advance. Are employees required to give notice when leaving for or returning from military service?
Employees must provide their employer with advance notice of their upcoming military service, either orally or in writing. There are exceptions if it would be impossible or unreasonable to give notice, or military necessity prevents giving notice.
Further, an employee must report back to work or apply to return to work under the following requirements:
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Am I allowed to discharge anyone who has returned from military leave?
If the employee served for more than 6 months, he cannot be let go for 1 year after reemployment except for cause. For those who served less than 6 months but more than 30 days, they must be retained (except for cause) for 6 months. Service of 30 days or less does not carry any protection.