With the ongoing military conflicts in Afghanistan and Iraq, combined with recent natural disasters, American employers have been faced with the call up of many activated reservist employees for military duty. While the loss of those employees may require employers to make workplace adjustments, it is important to recognize that activated service members are afforded significant job protections under federal law.
Uniformed Services Employment and Reemployment Rights Act Protects Activated Reservists
The Uniformed Services Employment and Reemployment Rights Act of 1994(USERRA), prohibits discrimination against any person on the basis of the person’s military service, current military obligations or intent to join one of the armed services. With limited exceptions, USERRA entitles service members returning to civilian life and employment after active duty to all the rights and benefits of employment which they would have obtained if they had continued in uninterrupted civilian employment.
Returning service members are entitled to prompt reinstatement to their prior civilian position if
- they left for military service, giving prior oral or written notice to the employer,
- the total time of service did not exceed five years, -the service member did not receive less than an honorable discharge,
- they report back to work within the legal time limits
The service member is entitled to the continuous accumulation of seniority during the service period. He/she will be entitled to immediate reinstatement of company health benefits. And, if the service member’s previous position is no longer available, then a new job of equal status must be provided unless the employer can present legitimate defenses.
If the service member is disabled as a result of military service, his/her employer must make reasonable accommodations to facilitate reemployment in the closest approximation of the prior position. This obligation may include reeducation/retraining.
If the service member would have qualified for Family Medical Leave Act leave had he/she not performed military service, then he/she would be considered qualified for such leave on a return to civilian employment. The time away in military service is counted as time worked for purposes of determining eligibility for FMLA leave.
The Lessons: USERRA applies to all employers, regardless of business size.
Other federal laws address the needs of qualified reservists called to military duty in the areas of accessing retirement accounts and HSA accounts, and death benefits. See also provisions of Heroes Earnings Assistance and Relief Tax Act of 2008(HEART) for additional detail.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.