The Web site serves as a refresher course on the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides guidelines employers, regardless of size, must follow when military reservists and the members of the National Guard return to work following their service.
Additionally, the Web site contains information on benefits for reservists, a 19-page US Department of Labor fact sheet on USERRA, as well as a link to the Employer Support of the Guard and Reserve Web site that includes frequently asked questions about the rights of employees on active duty.
Under provisions of the act, all public and private employers must extend reemployment rights and certain benefits protections to reservists called to active duty as well as those who volunteer. USERRA requires employers to provide their workers on military leave with the same benefits that employees on other types of leave receive, and COBRA-like coverage thereafter for any remaining time that they are still performing their military obligations. Employees also may use accrued vacation while on leave, but cannot be forced to do so.
To be eligible for reinstatement, the employee must:
- Give advance notice prior to leaving
- Be on active duty for less than five years (excluding certain service required by a declared war or national emergency)
- Not be dishonorably discharged or separated under other than honorable conditions
- Report back to work in a timely manner after discharge.
If the employee cannot perform the same job after their return, the employer must use reasonable efforts, such as training, to enable the employee to upgrade or refresh their skills to become qualified for that position.
Additionally, the law requires the employer to provide the same health care coverage for reservists on active duty for 30 days or less as it provides to other employees. If the service period is longer, an employee may choose to continue the employer-sponsored health care for up to 18 months. However, the employer can require the affected employee to pay up to 102% of the full premium.
Employers are not allowed to consider time on active duty as a break in employment for pension benefit purposes, and military service must be considered service with an employer for vesting and benefit purposes.
What the law does not require is an employer to continue to pay a worker on active duty. Although a recent survey conducted by Business & Legal Reports found two-thirds of employers choose to do so, with more than a quarter (26%) offering full pay to employees who get called to duty, 40% offering differential pay (the difference between salary/wages and military pay). The remaining 35% offered no pay at all (See Most Employers Offering Pay During Leave ).The AFL-CIO’s information can be accessed at www.aflcio.org/reserverights .