4.10 Uniformed Services Employment and Reemployment R rights Act (userra)

LibraryThe Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

4.10 UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA)

4.1001 In General. USERRA 312 was enacted in 1994 and significantly broadened the protections afforded those in military service by prohibiting discriminatory employment decisions where the employee's military status is a "motivating factor," even if it is not the sole motivating factor. 313 If a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, the employer is liable under USERRA. 314 A person who is absent from employment by reason of service in the uniformed services is considered to be on statutorily mandated furlough or leave of absence while performing military service. That person is entitled to the same rights and benefits, not based on seniority, that are generally provided by the civilian employer to employees having similar seniority, status, and pay who are on nonmilitary furlough or leave of absence. This includes rights and benefits established by contract, employer practice, policy, agreement, or plan effective at the beginning of the individual's period of military service or implemented while the individual is performing military service. 315

Virginia also provides that an employer is free to grant a preference in the hiring and promotion of veterans under section 40.1-27.2.

4.1002 Coverage. USERRA applies to all employers, including state and federal governments. 316 However, in 2016 the Virginia Supreme

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Court held that sovereign immunity barred USERRA claims against the Commonwealth. 317

All employees are covered by USERRA. An employee is defined as any person employed by an employer. 318 There is no minimum service requirement. In addition, applicants for employment and individuals who are not members of the uniformed services are protected under the anti-discrimination and anti-retaliation provisions. 319

4.1003 Notice to Employer. USERRA requires advance notice of military service to the civilian employer by the employee. 320

4.1004 Cost of Benefits. An individual may be required to pay the employee cost, if any, of benefits provided while the individual is on military leave, to the extent that other employees on furlough or leave of absence are required to pay. 321

4.1005 Waiver of Benefits. USERRA also provides that an employee may waive his or her furlough or leave of absence benefits if the person knowingly provides written notice of his or her intent not to return to employment after military service. 322

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4.1006 Health Benefits.

A. Scope of Coverage. For employees who are absent due to military service, USERRA requires a health plan to offer continuous coverage to these employees and their covered dependents, at the request of the employee or covered dependent, for a period equivalent to the lesser of 24 months or the day after the date on which the employee fails to apply for or return to a position for employment. USERRA does not indicate how long an employee must be given to elect continuation coverage.

B. Employee's Share Cost. A health plan may not require the employee to pay more than the employee's share for health coverage if the period of military service does not exceed 31 days. If the period of military service exceeds 31 days, the employee may be required to pay not more than 102 percent of the full premium under the plan. 323

C. Posting Requirements. Employers must provide notice to employees of their rights and benefits under USERRA. 324 The notice should be posted where employers customarily place notices for employees. 325

4.1007 Use of Paid Leave. USERRA permits an employee (including a temporary employee) to use any vacation or similar accumulated paid leave that was accrued before the employee's military service to supplement his or her income while on military leave. Employers cannot require employees to use paid leave for military leave. 326

4.1008 Reemployment.

A. In General. A civilian employer is usually required to reemploy a person who returns after military leave. However, in three circumstances the employer is not required to reemploy a former employee after military leave:

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1. If the employer's circumstances have so changed as to make reemployment of the individual impossible or unreasonable; 327
2. If reemployment of a disabled individual or one who is no longer qualified to perform his or her job would impose an undue hardship on the employer; 328 or
3. If the employment the person left to serve in the military was for a brief, nonrecurrent period and there was no reasonable expectation that the employment would continue indefinitely for a significant period. 329

The employer has the burden of proving the impossibility or unreasonableness, undue hardship, or the brief or nonrecurrent nature of the employment. 330

B. Five-Year Limit. An individual is not entitled to reemployment or other benefits provided by USERRA if his or her cumulative period of absence for military service (from one employer) exceeds five years. 331

4.1009 Dishonorable Discharge. An individual is not entitled to reemployment or other benefits provided by USERRA if the individual is (i) separated from military service with a dishonorable or bad conduct discharge; (ii) separated under other than honorable conditions; (iii) dismissed in a situation involving a general court martial or by order of the President in time of war; or (iv) dropped from the rolls due to absence without authority

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