Highlights
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides certain rights to employees who serve in the military. USERRA applies to all employers in the United States, regardless of size.
Discrimination and Retaliation
USERRA protects employees and applicants from discrimination and retaliation because of their military service, including past and future service. Employers may not discriminate in terms of hiring, rehiring, discharging, promoting, or providing any benefit of employment.
In addition, employers may not retaliate against employees for participating in a USERRA proceeding or exercising their rights under USERRA, even if they are not a service member.
Health Insurance
Employees may continue their existing health insurance with their employer for up to 24 months while in the military. Even if they do not continue coverage during their military service, they are generally required to be reinstated to the employer’s group plan when they are re-employed without waiting periods or exclusions, except for service-connected injuries. See Health Benefits, below.
Re-Employment Rights
After taking military leave, service members must be re-employed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites that they would have had if they had not taken military leave.
Employers may not discharge an employee without cause after they are re-employed. Employees who served more than 180 days may not be discharged without cause for one year. Employees who served 30–180 days may not be discharged without cause for 180 days.
Re-Employment Criteria
To be eligible for re-employment, the employee must meet the following criteria:
- Absence was due to service in the uniformed services.
- Combined service was for five years or less, with certain exceptions.
- Advance notice was provided before the leave, unless it was impossible or unreasonable.
- Employee was not dishonorably discharged or under other-than-honorable conditions.
- Employee requested reinstatement in a timely fashion, unless it was impossible or unreasonable.
Whether the employee’s request for reinstatement is considered timely depends on their length of service and whether they were hospitalized for an injury.
Required Poster
Employers are required to inform employees of their rights under USERRA. The U.S. Department of Labor provides a free Your Rights Under USERRA poster.
38 U.S.C. §§ 4301 – 4335
Eligibility
Employees are eligible for USERRA leave if they are absent from work because 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:
- Active duty and active duty for training.
- Initial active duty for training.
- Inactive duty training.
- Full-time National Guard duty.
- Absence from work for an examination to determine a person’s fitness for any of the above-listed types of duty.
- Funeral honors duty performed by National Guard or reserve members.
- Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Health and Human Services, when activated for a public health emergency, and approved training to prepare for such service.
Uniformed services consist of the following:
- Service in the U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard
- Service in the U.S. Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, and Coast Guard Reserve
- Service in the U.S. Army National Guard and Air National Guard
- Service in the Commissioned Corps of the Public Health Service
- Federal Emergency Management Agency (FEMA) Reservists
- Any other category of persons designated by the U.S. President in time of war or emergency
Note: USERRA was expanded to provide employment protections to Federal Emergency Management Agency (FEMA) Reservists while they are deployed to disasters and emergencies or critical trainings. FEMA Reservists are on-call personnel that serve as the main FEMA workforce during an emergency or disaster. FEMA has provided FAQs about the protections.
Exceptions
The following four circumstances disqualify an employee from asserting USERRA rights:
- Separation from the service with a dishonorable or bad conduct discharge.
- Separation from the service under other than honorable conditions. Regulations for each military branch specify when separation from the service would be considered “other than honorable.”
- Dismissal of a commissioned officer in certain situations involving a court martial or by order of the president in a time of war.
- Dropping an individual from the rolls when the individual has been absent without authority (UA) for more than three months or is imprisoned by a civilian court.
Advance Notice
The law requires employees to provide their employers with advance notice of military service, with some exceptions. Notice may be either written or oral. It may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving. However, no notice is required when either:
- Military necessity prevents the giving of notice; or
- The giving of notice is otherwise impossible or unreasonable.
Military necessity means a mission, operation, exercise, or requirement that is classified, or a pending or ongoing mission, operation, exercise, or requirement that may be compromised or otherwise adversely affected by public knowledge.
Duration of Service
USERRA leave is generally capped at five years. Most types of service will be counted as part of the five-year period.
Exceptions
Eight categories of service are exempt from the five-year limitation. These include:
- Service required beyond five years to complete an initial period of obligated service. Some military specialties, such as the Navy’s nuclear power program, require initial active service obligations beyond five years.
- Service from which an employee, through no fault of their own, is unable to obtain a release within the five-year limit. For example, the five-year limit will not be applied to members of the Navy or Marine Corps whose obligated service dates expire while they are at sea. Nor will it be applied when employees are involuntarily retained on active duty beyond the expiration of their obligated service date.
- Required training for Reservists and National Guard members. The two-week annual training sessions and monthly weekend drills mandated by statute for Reservists and National Guard members are not counted toward the five-year limitation. Also excluded are additional training requirements certified in writing by the secretary of the service concerned to be necessary for individual professional development.
- Ordered to involuntary service or retained on active duty during domestic emergency or national security related situations. For example, as a result of the attacks on the World Trade Center in New York City, President Bush declared that a national emergency existed and members of the Ready Reserve were called to active duty.
- Ordered to service or to remain on active duty (other than for training) because of a war or national emergency declared by the U.S. President or Congress. This category includes service not only by employees ordered to involuntary active duty, but also service by volunteers who receive orders to active duty. For example, since September 11, 2001, Reservists were involuntarily called to active duty under federal orders for Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom. Additionally, Reservists and retirees (who were not called) volunteered for active duty.
- Active duty (other than for training) by volunteers supporting “operational missions” for which Selected Reservists have been ordered to active duty without their consent. Such operational missions involve circumstances other than war or national emergency for which, under presidential authorization, members of the Selected Reserve may be involuntarily ordered to active duty under 10 U.S.C. § 12304. This sixth exemption for the five-year limitation covers employees who are called to active duty after volunteering to support operational missions. Employees ordered to involuntary active duty for operational missions would be covered by the fourth exemption.
- Service by employees who are ordered to active duty in support of a “critical mission or requirement” of the uniformed services as determined by the secretary. The secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement.
- Federal service by members of the National Guard called into action by the president to suppress an insurrection, repel an invasion, or to execute the laws of the United States.
Reporting Back to Work
To qualify for USERRA protections, an employee must be available to return to work within certain time limits, with some exceptions. These time limits for returning to work depend (with the exception of fitness-for-service examinations) on the duration of the employee’s military service.
Service of One to 30 Days
The employee must report to their employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an eight-hour rest period. For example, an employer cannot require an employee who returns home at 10 p.m. to report to work at 12:30 a.m. (two and half hours later). However, the employer can require the employee to report for the 6 a.m. shift the next morning.
If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible after the expiration of the eight-hour period.
Fitness Exam
The time limit for reporting back to work for an employee who is absent from work to take a fitness-for-service examination is the same as the requirement for employees who are absent from one to 30 days. This period will apply regardless of the length of the employee’s absence.
Service of 31 to 180 Days
An application for re-employment must be submitted to the employer no later than 14 days after completion of an employee’s service. If submission of a timely application is impossible or unreasonable through no fault of the employee, the application must be submitted as soon as possible on the next day when submitting the application becomes possible.
Service of 180 or More Days
An application for re-employment must be submitted to the employer no later than 90 days after completion of an employee’s military service.
Disability Incurred or Aggravated
The reporting or application deadlines are extended for up to two years for employees who are hospitalized or recovering because of an injury or illness incurred or aggravated during the performance of military service.
The two-year period is extended by the minimum time required to accommodate a circumstance beyond an employee’s control that would make reporting within the two-year period impossible or unreasonable.
Unexcused Delay
An employee’s re-employment rights are not automatically forfeited if they fail to report to work or to apply for re-employment within the required time limits. In such cases, the employee will be subject to the employer’s established rules governing unexcused absences.
Documentation Upon Return
An employer has the right to request that an employee who is absent for a period of service of 31 days or more provide documentation showing:
- Their application for re-employment is timely;
- They have not exceeded the five-year service limitation; and
- Their separation from service was not for a disqualifying reason.
Unavailable Documentation
If an employee doesn’t provide satisfactory documentation because it isn’t readily available or doesn’t exist, the employer still must promptly re-employ them. However, if, after re-employing the employee, documentation becomes available that shows one or more of the re-employment requirements were not met, the employer may terminate the employee and any rights or benefits that may have been granted.
Pension Contributions
If an employee has been absent for military service for 91 or more days, an employer may delay treating them as not having incurred a break in service for pension purposes until they submit satisfactory documentation establishing re-employment eligibility. However, such contributions have to be made promptly for employees who are absent for 90 or days or less.
Re-Employment Position
Length of Service
Except with respect to employees who have a disability incurred in or aggravated by military service, the position into which an employee is reinstated is based on the length of their military service.
One to 90 Days
An employee whose military service lasted from one to 90 days must be promptly re-employed in the following order of priority:
- In the job:
- The employee would have held had they remained continuously employed, so long as they are qualified for the job or can become qualified after reasonable efforts by the employer; or
- In which the employee was employed on the date of the commencement of the service in the uniformed services, only if the employee is not qualified to perform the duties of the position referred to above after reasonable efforts by the employer to qualify them.
- If the employee cannot become qualified for either position described above (other than for a disability incurred in or aggravated by the military service) even after reasonable employer efforts, the employee must be re-employed in a position that is the nearest approximation to the positions described above (in that order) that they are qualified to perform, with full seniority.
91 or More Days
The law requires employers to promptly re-employ employees returning from military service of 91 or more days in the following order of priority:
- In the job:
- The employee would have held had they remained continuously employed, or a position of like seniority status and pay so long as they are qualified for the job or can become qualified after reasonable efforts by the employer; or
- In the position of employment in which the employee was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status, and pay the duties of which they are qualified to perform, only if they are not qualified to perform the duties of a position referred to above after reasonable efforts by the employer to qualify them.
- If the employee cannot become qualified for either position above, in any other position that most nearly approximates the above positions (in that order) that the employee is qualified to perform with full seniority.
Escalator Position
The re-employment position with the highest priority in the re-employment schemes reflects the “escalator” principle that is a key concept in federal veterans’ re-employment legislation. The escalator principle requires that each returning employee be re-employed in the position they would have occupied with reasonable certainty if they had remained continuously employed, with full seniority.
The position may not necessarily be the same job the employee previously held. For instance, if the employee would have been promoted with reasonable certainty if they hadn’t been absent, they are entitled to that promotion. On the other hand, depending on economic circumstances, reorganizations, layoffs, etc., the position could be at a lower level than the one previously held, could be a different job, or could conceivably be in layoff status.
Qualifying for the Re-Employment Position
Employers must make reasonable efforts to qualify a returning employee for the re-employment position. Employers must provide refresher training and any other training necessary to update a returning employee’s skills so that they have the ability to perform the essential tasks of the position.
If the employee has a disability incurred or aggravated during the performance of uniformed service, the employer must make reasonable efforts to accommodate the disability and to help the employee become qualified to perform the duties of the re-employment position. If the employee can’t become qualified for the re-employment position despite the employer’s reasonable efforts, the employee must be re-employed in a position according to the following priority:
- A position that is equivalent in seniority, status, and pay to the escalator position.
- A position that is the nearest approximation to the equivalent position, consistent with the circumstances of the employee’s case. Such a position may be a higher or lower position, depending on the circumstances.
Prompt Re-Employment
Returning service members must be “promptly re-employed.” Prompt re-employment means as soon as is practicable under the circumstances. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. On the other hand, reinstatement following five years on active duty might require reassigning or giving notice to an incumbent employee who has occupied the service member’s position.
Disabilities Incurred or Aggravated While in Military Service
The following three-part re-employment plan is required for employees with disabilities incurred or aggravated while in military service:
- The employer must make reasonable efforts to accommodate the employee so that they can perform the duties of the re-employment position.
- If, despite reasonable accommodation efforts, the employee isn’t qualified for the position in #1 because of their disability, the employee must be re-employed in a position of equivalent seniority, status, and pay to the escalator position. The employee must be qualified to perform the duties of this position or become qualified to perform them with reasonable efforts by the employer.
- If the employee can’t become qualified for the position in either #1 or #2, the employee must be employed in a position that, consistent with the circumstances of their case, most nearly approximates the position in #2 in terms of seniority, status, and pay. Such a position may be a higher or lower position, depending on the circumstances.
Conflicting Re-Employment Claims
If two or more employees are entitled to re-employment in the same position, the following procedure applies:
- The employee who first left the position has the superior right to that position.
- The employee without the superior right is entitled to employment with full seniority in a position that provides similar seniority, status, and pay in the order of priority that normally determines a re-employment position.
Exceptions to Re-Employment
Certain exceptions may apply to an employer’s obligation to re-employ employees after military leave.
Changed Circumstances
Re-employment isn’t required if an employer’s circumstances have changed so much that re-employment would be impossible or unreasonable. A reduction-in-force that would have included the employee would be an example.
Undue Hardship
Employers are excused from making efforts to qualify returning service members or from accommodating employees with service-connected disabilities only when doing so would be of such difficulty or expense as to cause an undue hardship.
Exception for Brief Nonrecurrent Positions
An employer is not required to re-employ an employee if the pre-service position was for a brief or nonrecurrent period and there was no reasonable expectation that employment would continue indefinitely or for a significant period.
Employee Rights and Benefits
Seniority Rights
Re-employed employees are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed.
A right or benefit is seniority-based if it is determined by or accrues with length of employment. On the other hand, a right or benefit is not seniority-based if it is compensation for work performed or is made available without regard to length of employment.
Rights Not Based on Seniority
During a period of service, the employees must be treated as if they are on a furlough or leave of absence. Consequently, during their period of service, they are entitled to participate in any rights and benefits not based on seniority that are available to employees on comparable nonmilitary leaves of absence, whether paid or unpaid. If there is a variation in benefits among different types of nonmilitary leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable.
Employees are entitled not only to non-seniority rights and benefits available at the time they left for military service, but also those that become effective during their service and that are provided to similarly situated employees on furlough or a leave of absence.
Waiver of Rights
If, before leaving for military service, an employee knowingly provides clear, written notice of an intent not to return to work after military service, the employee waives entitlement to leave-of-absence rights and benefits not based on seniority. At the time of providing the notice, the employee must be aware of the specific rights and benefits to be lost. The employer bears the burden of proving that the employee knowingly waived entitlement to the specific rights and benefits.
A notice of intent not to return can waive only leave-of-absence rights and benefits. It can’t waive other rights and benefits that an employee would be entitled to under USERRA, particularly re-employment rights after service.
Funding of Benefits
Employees on military leave may be required to pay the employee cost, if any, of any funded benefit to the extent that other employees on leave of absence are so required.
Pension and Retirement Plans
Pension plans, which are tied to seniority, are given separate, detailed treatment under USERRA, as follows:
- After their military leave, an employee must be treated as not having incurred a break in service with the employer maintaining a pension plan.
- Military service must be considered service with an employer for vesting and benefit accrual purposes.
- The employer is liable for funding any obligation of the plan to provide required benefits.
- After their military leave, an employee is entitled to any accrued benefits contingent upon employee contributions only to the extent that the person repays the employee contributions.
Covered Plan
USERRA’s requirements apply to any plan that provides retirement income to employees upon the termination of employment or later. Defined benefit plans, defined contribution plans, and profit-sharing plans that are retirement plans are covered.
Multiemployer Plans
In a multiemployer pension plan, the sponsor maintaining the plan may allocate the liability of the plan for pension benefits accrued by employees who are absent for military service. If no allocation or cost-sharing arrangement is provided, the full liability to make the retroactive contributions to the plan will be allocated to the last employer employing the employee before the period of military service or, if that employer is no longer functional, to the overall plan.
Within 30 days after an employee is re-employed, an employer who participates in a multiemployer plan must provide written notice to the plan administrator of the employee’s re-employment, according to § 4318 (c).
Employee Contribution Repayment Period
Repayment of employee contributions or elective deferrals must be made by the end of the repayment period, which can be up to three times the length of the employee’s uniformed service but can’t exceed five years.
Calculation of Contributions
For purposes of determining an employer’s liability or an employee’s contributions under a pension benefit plan, the employee’s compensation during the period of their military service will be based on the rate of pay the employee would have received from the employer if they hadn’t taken military leave. If the employee’s compensation was not based on a fixed rate, or the determination of such rate is not reasonably certain, the employee’s compensation during the period of service is computed on the basis of the employee’s average rate of compensation during the 12-month period immediately preceding the employee’s period of military service (or, if shorter, the period of employment immediately before such period).
Vacation Leave
Employees are entitled to use any vacation leave that had accrued before the beginning of their military service instead of taking unpaid leave. However, employers cannot require them to use vacation time during military leave unless the absence coincides with a period when all employees are required to take vacation (i.e., a plant shutdown).
Health Benefits
USERRA provides for the continuation of health benefit coverage for employees who are absent from work to serve in the military. If an employee’s employer-sponsored health plan coverage would terminate because of their USERRA leave, they may elect to continue that coverage for up to 24 months after the absence begins or the period of absence, whichever is shorter.
Under USERRA a health plan includes medical, dental, vision, health FSAs, health reimbursement arrangements, ERISA health plans, and non-ERISA plans such as governmental plans and church plans.
Regarding payment of the premium for coverage:
- The employee can’t be required to pay more than 102 percent of the full premium for the coverage.
- The employee can’t be required to pay more than the normal employee share of any premium if the military service was for 30 or days or less.
When an employee returns from military leave, their health insurance coverage must be reinstated without any waiting period or exclusions for pre-existing conditions, other than waiting periods or exclusions that would have applied even if they hadn’t taken military leave. However, this rule does not apply to the coverage of any illness or injury determined by the Secretary of Veterans Affairs to have been incurred in, or aggravated during, performance of military service.
USERRA and COBRA
The health benefit continuation required by USERRA does not substitute for federal Consolidated Omnibus Budget Reconciliation Act (COBRA) required coverage. Rather, the two obligations run concurrently; generally, an employee starting a leave for uniformed service will be entitled to both COBRA and USERRA continuation. If health coverage is provided to a qualified beneficiary after a qualifying event without regard to COBRA continuation coverage (for example, as a result of another alternative coverage like USERRA), then the USERRA coverage will not extend the maximum coverage period but rather run concurrently with COBRA. 26 C.F.R. § 54.4980B-7.
Unlike COBRA, USERRA requires all qualifying employers that provide health plans to offer continuation of coverage. There is no minimum size requirement for USERRA to apply.
Note: Many states have laws like COBRA, so employers should be mindful of the laws applicable in their state.
Multi-employer Plans
In connection with USERRA’s health plan provisions, liability for employer contributions and benefits under multiemployer plans is allocated by the plan sponsor. If the sponsor makes no provision for allocation, liability is to be allocated to the last employer employing the person before their military service or, if that employer is no longer functional, to the plan.
Protection from Discharge
Under USERRA, a re-employed employee may not be discharged without cause:
- For one year after the date of re-employment if their period of military service was for 181 days or more.
- For 180 days after the date of re-employment if their period of military service was for 31 to 180 days.
Cause for discharge may be based on conduct or the application of legitimate nondiscriminatory reasons. Employees who take military leave for 30 or fewer days are not protected from discharge without cause. However, they are protected from discrimination because of military service or obligation.
Protection from Discrimination and Retaliation
Discrimination
Employment discrimination because of past, current, or future military obligations is prohibited. The discrimination ban is broad, including hiring, promotion, termination, and benefits.
Persons Protected
The law prohibits discrimination against past members, current members, and employees who apply to be a member of any of the branches of the uniformed services.
Standard
If an employee’s past, present, or future connection with military service is a motivating factor in an employer’s adverse employment action, the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of the employee’s connection with the service or exercise of any USERRA right.
Reprisals
Employers are prohibited from retaliating against employees (whether or not they have performed military service) who:
- File a complaint under USERRA.
- Testify, assist, or otherwise participate in an investigation or proceeding under USERRA.
- Exercise any right provided under USERRA.
Posting Requirements
Employers, regardless of size, are required to provide to everyone entitled to the rights and benefits under USERRA, a notice of their rights, benefits, and obligations. Employers may provide the Your Rights Under USERRA notice by posting it where employee notices are customarily placed. Employers are also free to provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (for example, by handing or mailing out the notice or distributing the notice by email).