Military Leave FAQs
USERRA applies to voluntary as well as involuntary military service, in peacetime as well as wartime. However, like the VRR law, USERRA does not apply to state call-ups of the National Guard for disaster relief, riots, etc. Any protection for such duty must be provided by the laws of the state or territory involved.
No; an employee may not be forced to use earned annual leave. Employees are entitled to earned annual leave or unpaid leave in addition to time off to perform military service. (A rare exception would be a standard shutdown of a program within a certain time of year whereby all employees would be required to take their annual leave during that period and an employee's period of military service coincides with that period).
Although an exact amount of time is not specified under USERRA, an employee, at a minimum, needs to be given sufficient time to travel to the place where the military duty is to be performed.
For periods of service of up to 30 consecutive days, the employee must report back to work for the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and safe transportation home, plus an 8-hour period for rest. If reporting back within this deadline is "impossible or unreasonable" through no fault of the employee, they must report back as soon as possible after the expiration of the 8-hour period.
After a period of service of 31-180 days, an employee must submit a written or verbal application for reemployment with RFCUNY (the employer) not later than 14 days after the completion of the period of service. If submitting the application within 14 days is impossible or unreasonable through no fault of the employee, they must submit the application as soon as possible thereafter.
After a period of service of 181 days or more, an employee must submit an application for reemployment not later than 90 days after completion of the period of service. These deadlines to report to work or apply for reemployment can be extended up to two years to accommodate a period during which a person was hospitalized for or convalescing from an injury or illness that occurred or was aggravated during a period of military service.
In either case, an employee does not automatically forfeit the right to reemployment, but will be "subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work."
Yes; an employee has the right to elect continued health insurance coverage, for themselves or their dependents, during periods of military service. For periods of up to 30 days of training or service, the employer (RFCUNY) may require an employee pay only the normal share, if any, of the cost of such coverage. For longer tours, the employer is permitted to charge the employee up to 102 percent of the entire premium. If an employee elects coverage, the right to that coverage ends on the day after the deadline for the employee to apply for reemployment or 24 months after the absence from the civilian job began, whichever comes first.
USERRA gives an employee and previously covered dependents the right to immediate reinstatement of civilian health insurance coverage upon return to the civilian job. The health plan cannot impose a waiting period and cannot exclude the returning employee based on preexisting conditions (other than for those conditions determined by the Federal government to be service-connected). This right is not contingent on an election to continue coverage during the period of service.
To the extent an employer offers other non-seniority benefits (e.g., holiday pay or life insurance coverage) to employees on furlough or a leave of absence, the employer is required to provide those same benefits to an employee during a period of service in the uniformed services. If the employer's treatment of persons on leaves of absence varies according to the kind of leave (e.g., jury duty, educational, etc.), the comparison should be made with the employer's most generous form of leave. Of course, you must compare periods of comparable length. An employee may waive his or her rights to these other non-seniority benefits by knowingly stating, in writing, his or her intent not to return to work. However, such statement does not waive any other rights provided by USERRA.
USERRA provides that, if the period of service was less than 91 days, the returning employee is entitled to the job they would have attained absent the military service, provided the returning employee is, or can become, qualified for that job. If unable to become qualified for a new job after reasonable efforts by the employer, the returning employee is entitled to the job they left.
For periods of service of 91 days or more, the employer may reemploy the returning employee as above (i.e., position that would have been attained or position left), or in a position of "like seniority, status and pay" the duties which the person is qualified to perform.
If a returning employee has been gone from the civilian job for months or years, civilian job skills may have been dulled by a long period without use. A returning employee must be (or become) qualified to do the job to have reemployment rights, but USERRA requires the employer to make "reasonable efforts" to qualify that returning employee. "Reasonable efforts" means actions, including training, that do not cause undue hardship to the employer. If a returning employee cannot become qualified in the positions after reasonable efforts by the employer, and if not disabled, the returning employee must be employed in any other position of lesser status and pay in which they are qualified to perform, with full seniority.
USERRA requires the employer to make "reasonable efforts" to accommodate persons with a disability incurred or aggravated during military service. If an employee returns from military service and suffers from a disability that cannot be accommodated by reasonable employer efforts, the employer is to reemploy the person in some other position they are qualified to perform that is the "nearest approximation" of the position to which the person is otherwise entitled, in terms of status and pay, with full seniority.
A disability need not be permanent to confer rights under USERRA. For example, if an employee breaks a leg during annual training, the employer may have an obligation to make reasonable efforts to accommodate the broken leg, or to place the person in another position, until the leg has healed.
A returning employee whose military service was for 30 days or less must return to work on the next regularly scheduled workday. A returning employee whose military service was for more than 30 days must submit an application for reemployment within 14 days after the completion of their service and provide documentation within two weeks of their return showing that: (1.) the notice of or application for reemployment was timely; and (2.) he or she received a certificate of completion of military service under honorable conditions. A returning employee generally has a right to return to the same position he or she held prior to the leave or to a position with like status and pay that the employee is qualified to perform, provided the appointment period from which the employee took military leave has not ended.