Military Leaves of Absence
U.S. officials have announced that members of the military reserves and the National Guard will be called to duty. Many anticipate increased training of reservists, and increased enlistment as well. The administration of military leave is an unfamiliar task to U.S. companies, but one that more and more may soon face. To assist in handling the issues which are likely to arise efficiently and effectively, we provide the following overview of federal law concerning military leave.
The federal Uniformed Services Employment and Reemployment Rights Act ("USERRA"), the primary law in this area, provides protections for members of all U.S. military branches including the Reserves and the National Guard. USERRA was passed in 1994, replacing the Veterans' Reemployment Rights Act ("VRRA") of 1940. USERRA has expanded the employment rights of reservists and created new duties for employers. Because USERRA is so new, there are little or no regulations or case law interpreting its provisions.
USERRA creates employer liability for taking any adverse action against an employee or job applicant on the basis of his or her military status. Under this statute, military status cannot be used as even a partial basis for consideration in any adverse action. This protection is not dependent on length of employment, but rather extends to all applicants and employees. The military branches include the Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, and any other category of persons designated by the President during war or national emergency.
The Mechanics of the Leave
Employers must excuse from work any employee whose absence is caused by "service in the uniformed services," including inactive duty training, annual training, examinations to determine fitness for duty, reporting for military duty (whether voluntary or involuntary) or any other military obligation. Those accustomed to the more limited absences permitted under VRRA primarily for situations involving war or a national emergency should take note of the USERRA's more expansive leave entitlements for training and other activities.
An employee does not have to request permission from the employer for a military leave of absence; the employee need only give notice. The employer does not have a right to forbid the employee from reporting, or the right to terminate employment if the employee does report, if the employee's military leave to date has not exceeded five years. In certain circumstances, the employer may ask the employee to delay a military duty obligation, but the final decision on the matter is left to the military commander. Such circumstances may include if the employee is asked to report for an extended period of time during a time of acute need at work, or when, in light of previous leaves, the requested military leave is cumulatively burdensome. Moreover, the employee cannot be required to find his or her replacement during the period of military leave.
If an employee will be absent from work due to military duty, the employee shall provide advance notice, either orally or in writing. However, employers may not insist on written notification, nor may they impose a "reasonable notice" requirement since none is included in the statute. USERRA also excuses reservists from the notice requirement where notice is impossible or unreasonable, or precluded by military necessity. Given that no case law has yet interpreted the notice section, employers would be well advised to make efforts to keep abreast of the reporting obligations of their reservist employees, while avoiding imposing deadlines or phrasing inquiries regarding schedules as demands for information, or imposing penalties for short notice.
Written documentation of the need for military leave may be requested by an employer, but it can be required only after thirty days of leave. Even then, taking adverse action against an employee who has not supplied written documentation is not recommended. An employer may not demand documentation which is not available. Also, the Act affirmatively states only that an employer may terminate employment if it discovers documentation that the employee was not, in fact, called for military service; it does not allow an employer to terminate an employee who fails to provide documentation within a reasonable time frame. Where the employee has applied for reinstatement but has not provided documentation, the employer should reinstate the employee unless and until it is determined that documentation is unavailable, or that the employee was not called for military duty. The National Committee for Employer Support of the Guard and Reserve (ESGR) recommends that the employer should contact the military leader if necessary; this ultimately may be the employer's best recourse for obtaining documentation.
While on military leave, employees have the right to health insurance continuation for themselves and their dependents, similar to COBRA coverage, with the employee paying up to 102% of the premium. Such coverage shall last up to 18 months but may end sooner if military service concludes and the employee fails to request reinstatement within the proper time frame. Other rights, benefits and pension benefits shall be reinstated as if there was no break in service with the employer.
Return to Employment
When an employee returns from military duty, the employer must treat the employee as if there has been no absence. This means, for example, that the employee is eligible for any bonus that may be paid for a perfect attendance record during the year, despite having taken a military leave. An employer is not required to pay an employee who is on military leave of absence, though many employers do provide some paid leave either under a military leave policy or under vacation or personal time policies. The USERRA provides that an employee who chooses to use paid time off (e.g. vacation) during military leave must be allowed to do so, but employers cannot mandate or prohibit use of paid time during the leave. Employers are not required to allow accrued benefits such as vacation time, sick time, etc., to accrue during the military leave, though all benefits must be reinstated upon return. The only benefit which "accrues" during a military leave is seniority status.
An employee who enters into military duty has certain reemployment rights. To retain the protection of the USERRA, the employee must return to work, or request reinstatement within certain time frames. Note that these deadlines may be extended up to two years for persons who are convalescing from a disability which occurred or was aggravated during military service.
- Military duty of 1 to 30 days: return to work at the start of the next regularly scheduled work day, or at a time which provides for a reasonable amount of time to commute home from military duty plus eight hours. (This will avoid requiring an employee who returns home at 10 P.M. Sunday night from having to report for work at 12:30 A.M. on Monday.)
- Military duty of 31 to 180 days: apply for reinstatement within 14 days of completing military duty.
- Military duty of 181 or more days: apply for reinstatement no later than 90 days after completing duty.
If an employee returns from service but fails to meet these deadlines, the employer may not automatically assume that the employee has voluntarily resigned or does not wish to be reemployed. Instead, the employer should apply its own conduct rules and policies with regard to seeking explanations or imposing discipline for an absence from work.
After military duty is completed, the employer has an obligation to reinstate the employee, with all seniority rights and benefits such as the person would have had if he or she had remained continuously employed. Specifically, the employer must place the returning employee in his or her former job, or in the job which he or she would have obtained, had he or she been continuously employed. This means that, for example, if a promotion was pending for the employee at the time he or she left for military leave, the employee must be placed in the promoted position upon return. Because most promotions are awarded on the basis of merit, not seniority, the requirement of implementing any automatic promotions is minimal, but employers should follow their own policies on any automatic awarding of promotions.
Employers also must make reasonable efforts to ensure that returning employees have the necessary qualifications for the position to which they are to be returned. During extended military leave, the employee may miss some training or education programs which are required for the position (or the promoted position), or may otherwise lose some qualifications for the position - perhaps through a disability incurred during military service. If this happens, the employer must make reasonable efforts to cause the employee to become qualified for the position. If the employee cannot become qualified for a promoted position despite reasonable efforts of the employer, he or she should be returned to the position held prior to military duty or a similar position. If the employee is not qualified for that position, he or she should be given a similar position in terms of seniority, salary and status. Clearly, the USERRA requires more of an employer than does the ADA's requirement of reasonable accommodation. Refusal to reinstate an employee returning from military leave is permitted only in very narrow circumstances where undue hardship for the employer would result, and employers should take that step only upon advice of legal counsel.
Employees returning from military duty have a unique protection in that they may not be discharged from employment, except for cause: (1) within one year after the date of such reemployment, if the period of military service before the reemployment was more than 180 days, or (2) within 180 days after the date of such reemployment, if the person's period of military service before the reemployment was more than 30 days but less than 180 days. While "cause" is not defined in the statute, case law interpreting this term in the VRRA has suggested that cause means transgressions of a work rule or policy, but does not include such reasons as a lack of skill, competence, diligence or loyalty. An employer may be well advised to implement progressive disciplinary steps rather than summary discharge for rule violations that involve minor offenses.