This year marks the 30th anniversary of The Uniform Services Employment and Reemployment Rights Act (USERRA). While its language and application are sometimes construed as confusing because of how different it is compared to other leave laws, it is a purposeful piece of legislation. USERRA is a federal law that protects military service members and veterans from employment discrimination on the basis of their service and allows them to regain their civilian jobs following a period of uniformed service. As we thank those who serve this country and protect our freedoms, it is an ideal time to increase awareness and understanding of USERRA.
The basics
Defined under USERRA, uniformed services includes: Army, Navy, Marine Corps, Air Force and Coast Guard; reservists of these branches; Army National Guard and Air National Guard; or Commissioned Corps of the Public Health Service. Uniformed services can also include any other category of persons designated by the President in time of war or emergency.
In an effort to expand the types of service that is covered under USERRA, President Biden signed into law the “Civilian Reservist Emergency Workforce Act of 2021” or the “CREW Act” on September 29, 2022. The CREW Act extends employment protections under USERRA to Federal Emergency Management Agency (FEMA) reservists who deploy to major disaster sites.
Various types of voluntary and involuntary service will be covered under “service in the uniformed services.” In general terms, this includes active duty and active duty training; inactive duty training; and full-time National Guard duty. It also includes absence from work for an examination to determine a person’s fitness for duty. Funeral honors performed by the National Guard or Reserve members are also covered. USERRA extends to duty performed by intermittent employees of the National Disaster Medical System (NDMS) when activated for public health emergency or approved training.
USERRA versus other employment leave laws
There are many differences between other employment leave laws and USERRA, one being the type of employers covered. USERRA is broadly defined to include all public and private employers. In essence, USERRA provides that an employee who misses work due to service in the uniformed services must be reinstated to their job upon their return.
USERRA reemployment rights apply if the cumulative length of service that requires the employee’s absences from a position does not exceed five years with the same employer. This means the five-year cumulative length of service is per employer and not the lifetime of the employee. While most types of service will be counted in the computation of the five-year period, there is a lengthy list of exceptions found in the regulations.
Like other leave laws, USERRA requires an employee to provide their employer with advance notice of military service. The notice provided by the employee may be written or oral. While USERRA does not specify how far in advance notice must be given to the employer, an employee should provide notice as far in advance as is reasonable under the circumstances. Like many aspects of USERRA, it is important to understand exceptions related to this advance notice requirement.
Unlike other leaves where documentation can be required at the front or start of the leave, USERRA allows documentation to be requested at the end. USERRA regulations refer to this as the application for reemployment. Under USERRA, an employer has the right to request that an employee on military leave for a period of 31 days or more provide documentation or an application for reemployment. The timing of when the documentation is due is based on the period of service.
Before their period of service, the employee is not required to inform the civilian employer if they intend to seek reemployment after completing uniform service. In fact, even if the employee tells the employer that they do not intend to seek reemployment, the employee still does not forfeit the right to reemployment after completing service. Also, the employee is not required to ask for or get the employer’s permission to leave to perform service in the uniformed services. The employee is only required to give the employer notice of their pending service.
During their period of service, the employee is deemed to be on furlough or leave of absence from their employer. In this status, the employee is entitled to the non-seniority rights and benefits generally provided by the employer to other employees with similar seniority, status, and pay that are on furlough or leave of absence. If you have specific questions on the treatment of an employee during their service in the uniformed services, please speak with your employment counsel for further guidance.
Next steps for employers
Your employee has completed their time in the uniformed services and wish to return to their job. Now what? Upon their return from qualified service, the employee is entitled to reinstatement to the position they would have attained with reasonable certainty if they had remained continuously employed and not gone on military leave. This is another example where USERRA is different than a typical leave. Based on the escalator principle, USERRA requires the employee to be brought back in the position they would have attained if not for their military service. This is unlike job protection rights which typically require that an employee is brought back to the position they were in or an equivalent position when they went on leave.
In summary, USERRA is intended to minimize any disadvantages an individual may experience when that person needs to be absent from their civilian employment to serve this country’s uniformed services. At Sedgwick, we work with employers to ensure USERRA is applied appropriately for those who serve in uniformed services. We also work with employers to identify steps that can be taken upon an individual’s return from uniformed services and reentry into the workforce. For all those who serve or have served in uniformed services, we thank you for your dedication and sacrifice.
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Tags: Absence, benefits, Disability, Employee, employers, employment, Employment laws, Helping people, Leave, leave of absence, United States