What if Your Employee is Called for
Active Military Duty?
by Shari Lifland
In the wake of the September 11 terrorist
attack on America, many employers have questions about their responsibilities
and rights concerning employees who are called up for active military
duty in the National Guard or Reserves. Certainly employers have
an important role to play in maintaining our country’s military
strength and security. According to the National Committee for Employer
Support of the Guard and Reserve (ESGR), “As an employer, you are
vital to enabling your employees who are members of the National
Guard and Reserve to serve their country. Moreover, your active
support and encouragement are key to their success.”
Surprisingly, more than half of the men
and women serving in our armed forces are members of the National
Guard and Reserve. And, their performance must meet the same standards
as their active duty counterparts. However, since they do not serve
full-time, the cost to our government is far less than that of full-time
military members.
Obviously, employers want to uphold their
responsibilities to both their country and their workers, while
at the same time ensuring that their day-to-day business operations
continue uninterrupted. President Bush, at a recent visit to the
Pentagon, recognized and thanked employers who support their military
employees as they get ready to play an essential role in defeating
terrorism, stating, “Guardsmen and Reservists will serve not only
as a strong symbol to all that we’re prepared to take the necessary
actions, but will be a part of helping define the spirit and courage
of America. And I’m grateful.”
The rights and responsibilities for National
Guard and Reserve members called to active duty and their civilian
employers, are covered by the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). This Act is administered
and enforced by the Department of Labor’s Veterans’ Employment
and Training Service (VETS). USERRA potentially covers every individual
in the country who serves in or has served in the uniformed services,
and applies to all employers in the public and private sectors,
including Federal employers. The law “seeks to ensure that
those who serve their country can retain their civilian employment
and benefits, and can seek employment free from discrimination because
of their service.” USERRA also provides enhanced protection
for disabled veterans, requiring employers to make reasonable efforts
to accommodate the disability.
Following are some of the general statutes
of USERRA:
Guard and Reserve members can perform military
duty for up to a five-year accumulative limit and receive job reinstatement
when they return.
Returning service members must be re-employed in the job that they would
have attained had they not been absent for military service (the
long-standing "escalator" principle) with the same seniority, status and
pay, as well as other rights and benefits determined by seniority.
While an individual is performing military service, he or she is deemed to
be on a furlough or leave of absence and is entitled to the non-seniority
rights accorded other individuals on non-military leaves of absence.
Reasonable efforts (such as training or retraining) must be made to enable
returning service members to refresh or upgrade their skills to help them
qualify for reemployment.
The law clearly provides for alternative reemployment positions if the
service member cannot qualify for the "escalator" position.
Individuals performing military duty of more than 30 days may elect to
continue employer sponsored health care for up to 18 months; however, they
may be required to pay up to 102 percent of the full premium. For military
service of less than 31 days, health care coverage is provided as if the
service member had remained employed.
All pension plans are protected.
The period an individual has to make application for reemployment or
report back to work after military service is now based on time spent on
military duty:
For service of less than 31 days, the service member must return at the
beginning of the next regularly scheduled work period on the first full
day after release from service, taking into account safe travel home plus
an eight-hour rest period. For service of more than 30 days but less than 181 days, the service
member must submit an application for reemployment within 14 days of
release from service. For service of more than 180 days, an application
for reemployment must be submitted within 90 days of release from service.
Service members must provide advance written or verbal notice
to their employers for all military duty unless giving notice is
impossible, unreasonable, or precluded by military necessity. Additionally,
service members are able (but are not required) to use accrued vacation
or annual leave while performing military duty.
Resources for Employers:
National Committee for Employer Support of the Guard and Reserve
(ESGR): 1.800.336.4590 or the ESGR
website. As long as the current military state of readiness
continues, ESGR has personnel on 24-hour call ready to provide information
and answer questions regarding USERRA. (Note: The ESGR is an agency
within the Office of the Assistant Secretary of Defense for Reserve
Affairs. It was established in 1972 to promote cooperation and understanding
between Reserve members and their civilian employers and to assist
in the resolution of conflicts arising from an employee's military
commitment.)
The U.S. Department of Labor's toll-free Call Center can assist
workers and employers with questions about Reemployment Rights for
Veterans, National Guard or Reservists: 1.866.4.USA.DOL (TTY: 1.877.TTY.JOBS).
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