Employers' Obligations Under the Uniformed Services Employment and Reemployment Rights Act

• Publication year: 2002
• Pages: 55

31 Colo.Law. 55 Colorado Lawyer 2002.

2002, February, Pg. 55. Employers' Obligations Under the Uniformed Services Employment And Reemployment Rights Act

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55

Vol. 31, No. 2, Pg. 55

The Colorado Lawyer
February 2002
Vol. 31, No. 2 [Page 55]

Specialty Law Columns
Labor and Employment Review
Employers' Obligations Under the Uniformed Services Employment And Reemployment Rights Act
by Thomas E. J. "Tobie" Hazard

Thousands of reservists and National Guard members have been called up to military service following the events of September 11, 2001. As described in this article, these civilian soldiers have substantial job and benefit protections under USERRA

This month's article was written by Thomas E. J "Tobie" Hazard, Denver, who is Of Counsel with Holland & Hart LLP, (303) 295-8000

In response to the attacks on the World Trade Center and Pentagon on September 11, 2001, the U.S. Department of Defense has called up over 60,000 military reservists and members of the National Guard to serve overseas or provide homeland defense under Operation Noble Eagle and Operation Enduring Freedom.1 In Colorado alone, approximately 540 National Guard members and 650 reservists have been activated.2 As these individuals leave their civilian jobs for tours of duty, many employers are uncertain about their obligations to these employees, or what rights these employees will have on their return from military service.

Civilian employees who are called up to military service enjoy substantial job and benefit protections pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA").3 This article discusses the major protections and obligations afforded by USERRA.

Overview of Employee Rights Under USERRA

USERRA prohibits discrimination against employees on the basis of their military service. It also attempts to minimize the disadvantages to their civilian careers as a result of their military service.4 USERRA accomplishes these goals in two ways. First, it prohibits employment discrimination and retaliation against eligible employees based on past, current, or future membership or service in the uniformed services.5 Second, it establishes reemployment rights and certain employment benefit protections for civilian employees who must leave their jobs to serve in the uniformed services.6

Military Leaves of Absence

Under USERRA, all public and private-sector employers are required to provide leaves of absence to eligible employees who are absent from work for military service in one of the uniformed services. "Uniformed services" covers the Army, Navy, Air Force, Marine Corps, and Coast Guard, as well as the Reserve components of these services. It also includes the Air National Guard and Army National Guard, the commissioned corps of the Public Health Service, and other persons designated by the U.S. President in time of war or national emergency.7 "Military service" refers to the performance of any duty in the uniformed services on a voluntary or involuntary basis, including active duty; active duty for training; initial inactive duty for training, for example, boot camp; inactive duty training, such as reserve weekends; full-time National Guard duty; and absence for examinations to determine fitness for duty, such as mandatory physical examinations.8

Military Leave: Paid
Or Unpaid?

Private employers must grant employees unpaid time off to perform their service obligations in the uniformed services.9 Although a leave for military service is generally unpaid, an employee may elect to use any accrued vacation time, annual leave, or personal time in lieu of unpaid leave for all or a portion of the employee's absence.10 An employer may not require employees to use accrued paid leave for a service-related absence.11

Health Care Coverage While On Military Leave

Under USERRA, an employee whose military leave is for less than thirty-one days is entitled to continue his or her employer-sponsored health care coverage on the same terms the employee enjoyed just prior to the leave.12 For example, if an employee was responsible for paying a portion of the health care premium just before the leave commenced, the employee will remain responsible for paying that premium during a short-term military leave of absence.

Those employees who serve more than thirty days in the military, and would lose coverage under the employer's health care plan because of their absence, must be
allowed to elect continued coverage for themselves and their dependents under USERRA's coverage continuation provision. USERRA's coverage continuation provision is similar to that provided for in the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA").13 USERRA allows employees to continue coverage at their own expense for up to eighteen months or the day after the employee fails to return to work after service, whichever comes first.14 The charge for coverage can be no more than 102 percent of the full premium (the 2 percent is to cover administrative costs).15

On timely return from military service, the employee's health insurance coverage must be reinstated without any waiting period or exclusions for preexisting conditions other than the waiting periods or exclusions that would have applied if there had been no absence for military service.16 This rule prohibiting waiting periods or excluding preexisting conditions does not apply to coverage of disabilities or injuries sustained during uniformed service.17

The requirements described above apply to group health plans that provide medical, dental, and vision care benefits through traditional indemnity arrangements, health maintenance organizations, and self-insured group health plans. They also apply to medical reimbursement or "flexible spending" accounts maintained under Internal Revenue Code Section 125 plans.

Benefit Accrual While
On Military Leave

While on military leave, the employee must be treated, and be entitled to the same rights, as other employees absent for reasons other than military service.18 For example, if employees on non-military leave are entitled to accrue vacation during the period of their leave, that same right must be afforded to employees absent on military leave. Likewise, an employer will be obligated to provide continued life insurance, disability insurance, and other benefits during an employee's military leave, to the extent those benefits are provided to other employees on unpaid, non-military leaves of absence. If there are differences among the rights employees on non-military leaves of absence are entitled to, the most favorable rights available must be afforded to the service member.19

Reemployment Rights
After Military Leave

USERRA provides that an individual who is absent from work by reason of temporary military service is entitled to reinstatement rights and benefits if all of the following conditions are met: (1) the employee gives the employer timely advance notice of the service; (2) the cumulative length of the absence when combined with all previous absences by reason of military service does not exceed five years; (3) if the individual separates from military service the separation was not a dishonorable...