by Mark G. Jeffries

Most HR professionals are aware that under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and similar state laws, they have to provide military leave for employees with military service obligations, such as those who serve in the National Guard and military reserves, and reemploy them when the duty is over. What often isn’t as clear is what obligations employers have while their employees are on military leave.

USERRA far Broader Than Most Employment Laws

The first thing to be aware of is that USERRA may apply to you even if you have too few employees to be covered by other employment laws. Under USERRA, an “employer” is defined as “any person, institution, organization, or other entity that pays salary or wages for work performed, or that has control over employment opportunities.” Unlike with other federal employment laws, such as the Family and Medical Leave Act (FMLA), there are no exceptions based on the size of the employer or the number of employees employed.

An “employee” is defined as “any person employed by an employer.” USERRA’s protections apply to all positions, including those that are for a brief, nonrecurrent period and for which there is no reasonable expectation it will continue indefinitely or for a significant period.

There are no requirements that an employee have been employed for any certain length of time before being covered by USERRA, as there is with the FMLA. Similarly, there are no exceptions for executive, administrative, or professional employees, as there is with the Fair Labor Standards Act (FLSA). The employee is entitled to military leave, regardless of the fact that they will be serving in the reserves and they volunteered for duty. USERRA provides for military leave for an employee’s “service in the uniformed services,” which includes all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war.

Similarly, USERRA’s notice requirement is far broader than other laws. Subject to certain exceptions, to be entitled to the Act’s protections, the employee must notify the employer that they intend to leave employment for service in the uniformed services. The notice may be either verbal or in writing and doesn’t need to follow any particular format. USERRA doesn’t specify how far in advance the notice must be given. It simply requires the employee to provide notice as far in advance as is reasonable under the circumstances.

Obligations while Employee on Military Leave

While employees are away on military leave, they are considered to be on a furlough or leave of absence, entitled to the same non-seniority rights and benefits generally provided by the employer to other employees with similar seniority, status, and pay who are on similar furloughs or leaves of absence. USERRA doesn’t require, however, that covered employees be provided with paid military leave or be compensated for the difference between their military pay and what they would make in civilian employment.

Note, however, that some state military leave laws do. For example, West Virginia’s military leave law, which only applies to public employers, requires that employees receive up to 30 days of military leave each year “without loss of pay” and an additional 30 days if activated under certain federal authority. The statute specifies that “without loss of pay” means employees must receive their normal compensation, so simply making up the difference between military and civilian pay won’t suffice.

Questions often arise about whether employees on extended military leave are entitled to accrue vacation or sick leave or if they are entitled to bonuses that are paid while they are on military leave. The answer depends on how the employer treats other employees who are on similar, non-military forms of leave.

Although USERRA requires that employees receive the same non-seniority rights and benefits generally provided to other employees on similar furloughs or leaves of absence, an employee away on military leave isn’t entitled to any additional benefits or preferential treatment. Thus, if employees on similar, nonmilitary leave (such as FMLA leave or an unpaid leave of absence) accrue vacation or sick leave or are paid a bonus, employees on military leave must receive the same benefit. If you don’t provide the benefits to other employees on similar leaves, you don’t need to provide them to employees on military leave.

If an employee has health plan coverage, the plan must permit them to continue the coverage for themselves and any covered dependents for the lesser of 24 months following the beginning of the military leave or the date when they fail to return from service or apply for reemployment. If the period of military service is less than 31 days, the employee cannot be required to pay more than the regular employee share for health plan coverage. For periods of service 31 days or longer, however, the employee may be required to pay up to 102% of the full premium under the plan.

USERRA doesn’t specify how an employee must elect to continue health plan coverage. Therefore, health plan administrators may develop reasonable requirements addressing how continuing coverage may be elected, consistent with the terms of the plan and USERRA’s exceptions to the requirement that the employee give advance notice of service in the uniformed services.

Another question that often comes up is whether the employer can fill the position of someone who is away on extended military leave. The answer is “yes,” but the new employee may need to be “bumped” upon the service member’s return.

Nothing in USERRA prohibits you from hiring a replacement for an employee who is away on military leave. It only concerns itself with the servicemember-employee’s reemployment rights. In fact, the regulations implementing the Act expressly contemplate that you may hire a replacement while an employee is away on military leave, but you still have to reemploy the returning servicemember.

You may not refuse to reemploy returning employees because another employee was hired to fill the position during their time on military leave, even if reemployment might require the termination of the replacement employee.

Bottom Line

Reemploying an employee who is away for a short period of military leave—such as a drill weekend or two-week annual training—usually doesn’t raise an issue for most employers. When employees leave for extended periods of military leave, however, you must be aware of your obligations under both USERRA and applicable state law. And because you typically don’t deal with military leave as often as you do FMLA leave or workers’ compensation leave, you may be less certain about what your obligations are. If in doubt, a quick call to your employment lawyer can save you a lot of headaches (and possibly money) later.

Mark G. Jeffries is an attorney with Steptoe & Johnson PLLC in Bridgeport, West Virginia. Actively serving 22 years in the U.S. Air Force taught Mark Jeffries tactics that he uses every day in his practice where he works with his clients to make sure that their labor and employment strategy supports their business objectives and that the goal is always in sight. You can reach him at 304-933-8155 or mark.jeffries@steptoe-johnson.com.