Under USERRA, any individual who enlists in the armed forces, or is called to active duty, has, in most circumstances, the right to return to the position he or she would have attained if employment had not been interrupted by military service, provided the individual is qualified to perform the requirements of that position.
Employers must make “reasonable efforts” to enable returning service members to refresh or upgrade their skills so they can qualify for reemployment. Employees who are unable to qualify for the position they would have attained must be returned to the position they held prior to the start of military service. Here, too, employers must make reasonable efforts to enable returning service members to qualify for reemployment.
In general, the reemployment rights of returning service members are protected for a period of five years. That period may be extended where an individual is retained in the armed forces beyond a scheduled date of discharge on the order of the secretary of his or her branch of the armed forces.
USERRA also provides for the continuation of employer-provided benefits, such as health insurance. Where military service is for fewer than 31 days, coverage must be maintained as if the individual had remained employed. Where service is longer than 30 days, an individual may be required to pay up to 102% of the full premium.
Employees also have obligations under USERRA. They must provide prior notification, orally or in writing, of military duty, except where the giving of notice is impossible or precluded by military necessity. In addition, returning service members must make application for reemployment within a time period determined on the basis of the length of their military duty. Where the time spent on military duty is less than 31 days, the returning service member must return to work at the beginning of the next regularly scheduled work period following the first full day after release from service, after allowing for travel home and an eight-hour rest period. Where service was for more than 30, but fewer than 181 days, application for reemployment must be made within 14 days of release from service. For service of more than 180 days, application for reemployment must be made within 90 days of release from service.
Employers should be aware of their obligations under USERRA so that they can respond appropriately, and on a timely basis, to requests for reemployment. Failure to do so may result in an enforcement action by the US Department of Labor.
If you have questions or would like more information about USERRA, please contact me.
You can learn about regulations that apply to returning service members on the US Department of labor web by clicking here.