Thirteen Facts Every South Dakota School Administrator Should Know About USERRA

 

One of the most challenging decisions for school administrators is determining whether an employee who is unable to work because of a military commitment has the right to a leave of absence. In an effort to provide some guidance on this subject, here are the basics of the Uniformed Services Employment and Reemployment Rights Act (USERRA).

1.  What is the Uniformed Services Employment and Reemployment Rights Act (USERRA)?

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that establishes rights and responsibilities for uniformed Service members and their employers. USERRA applies to virtually all employers, regardless of size, and requires employers to make reasonable efforts to assist returning service members, whether disabled or not, in becoming qualified for a job upon reinstatement. 

2.  What are the basic provisions of USERRA?

A departing service member must be treated as if they are on a leave of absence. While they are away they must be entitled to participate in any rights and benefits not based on seniority that are available to employees on nonmilitary leaves of absence, whether paid or unpaid. If there is a variation among different types of leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable.

Returning employees are entitled not only to certain rights and benefits available at the time they left for military service, but also those that became effective during their service. Service members may be required to pay the employee's cost, if any, of any funded benefit to the extent that other employees on leave of absence would be required to pay.   

3.  Who is covered under USERRA?

An employee is covered and eligible for reemployment under USERRA if the employee has been absent from a position of employment because of “service in the uniformed services.” USERRA applies to all employees. There is no exclusion for executive, managerial, or professional employees.

4.  Which service branches are included under USERRA?

“Uniformed services” includes the Army, Navy, Marine Corps, Air Force, or Coast Guard, and their corresponding reserve corps, the Army National Guard or Air National Guard, the Commissioned Corps of Public Health Service, and any other category designated by the President in an emergency.

5.  What is the definition of “service in the uniformed services”?

“Service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service, including: (a) active duty, including active duty for training and initial active duty for training, (b) inactive duty training, (c) full-time National Guard duty, (d) absence from work for an examination to determine a person’s fitness for any of the above types of duty, (e) funeral honors duty performed by National Guard or reserve members, (f) intermittent employees of NDMS when activated for a public health emergency, and (g) service members who leave their civilian jobs voluntarily or involuntarily for military obligations.

6.  Is an employee required to get permission for his employer before leaving to perform military service?

No. The employee is not required to ask for or get his employer’s permission to leave to perform military service. The employee is only required to give the employer notice of pending service.

7.  How does USERRA impact vacation pay?

Vacation pay must be permitted for time accrued before beginning the military service instead of unpaid leave, but the use of vacation pay is at the service member’s request and service members cannot be forced to use vacation time for military service. 

8.  How does USERRA impact health benefits?

Health benefits must be continuous for persons absent from work due to military service and for their dependents. If the plan’s coverage would terminate because of the absence, the person may elect to continue the plan coverage for up to 18 months after the absence begins. Employees cannot be required to pay more than 102% of the full premium for this coverage. If the absence is less than 30 days, the person cannot be required to pay more than the normal employee share of any premium.

9.  What are an employee’s requirements under USERRA?

An employee must (either orally or in writing) provide their employer with advance notice of service obligations, so long as it is practical or reasonable to do so. The cumulative length of service causing absence from work which is protected by USERRA is limited to 5 years.

10.  Under what circumstances may an employee forfeit USERRA rights?

An employee may forfeit certain rights if, prior to leaving for military service, he provides clear written notice of an intent not to return to work after military service. At the time of providing the notice, the employee must be aware of the specific rights and benefits to be lost. Notices of intent not to return can waive only leave-of-absence rights and benefits, not reemployment rights.

11.  Are there any exemptions or disqualifications under USERRA?

There are a limited number of circumstances which affect rights under USERRA.

For instance, an employer does not have a reemployment obligation if an employee’s pre-service position of employment “is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.” 

Next, there are four circumstances which are considered to be disqualifying service and which eliminate an employee’s rights under USERRA - (1) dishonorable or bad conduct discharge, (2) separation from the service under other than honorable conditions, (3) court martial or dismissal by order of the President during war time, and (4) AWOL for more than 3 months or incarceration. 

Finally, a change in circumstances or a reduction in force may excuse an employer from reemployment obligations if doing so would be impossible, unreasonable or an “undue hardship.”

12.  Are there timeframes for an employee to return to work?

Yes. An employee’s obligation to report back to work depends on the duration of the employee’s military service. Generally, for service up to 30 days, an employee must report to his employer by the beginning of the first regularly scheduled work period following the completion of service, after allowance for travel home and an 8-hour rest period. For example, if a person returns home at 10:00 p.m., it is inappropriate for them to report to the following 3:00 a.m. shift. However, he may be scheduled for a 6:00 a.m. shift (8 hours between 10 p.m. and 6 a.m.).   

For service of 31 to 180 days, an employee should submit an application for reemployment within 14 days after completion of his service. Employers may request documentation showing that the employee’s application for reemployment is timely, that the employee is within the 5-year mark, and that the employee’s separation from service does not disqualify them. If an employee cannot provide satisfactory documentation, the employer must still reemploy the person. However, if documentation later reveals that the employee failed to meet the reemployment requirements, the employer may terminate the employee.  

For service of 181 or more days, an employee should submit an application for reemployment within 90 days after completion of his service.

If there is an unexcused delay in an employee’s return to work, the employee does not automatically forfeit reemployment rights. Instead, an employee who fails to report to work or apply for reemployment within the required time limits will be subject to the employer’s rules governing unexcused absences.

13.  What position is the employee entitled to upon reemployment?

Generally, the employee is entitled to reemployment in the job position that he would have attained with reasonable certainty if not for the absence due to military services. This position is known as the “escalator position” and requires that the employee be reemployed in a position that reflects the pay, benefits, seniority, and other job benefits that he would have attained if not for the period of service.

Scott Swier
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