Labor and Employment Alert
September 28, 2001
Military Leave of Absence from Employment
Following September 11's tragic events, President Bush has called military reserves to active duty and the U.S. Armed Forces remain on alert. This Sonnenschein Labor and Employment Law Alert provides an overview of military leave of absence from employment. If you have specific questions, please send a Reply to this message or contact one of our attorneys listed at the end of this Labor Alert.
Background
Following the Gulf War, Congress passed the Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA) (38 U.S.C. Section 4301, et. seq), which requires employers to provide extensive benefits and job restoration rights to employees absent from work due to "service in the uniformed services," including the Army, Navy, Air Force, Marines, Coast Guard (and reserves for each of these branches), Army National Guard, Air National Guard and commissioned corps of the Public Health Service. President Bush has the authority to provide USERRA protection to members of other organizations as well, however, Sonnenschein is not aware of President Bush exercising his authority to extend the protection to any other group. This law, enforced by the U.S. Department of Labor, expressly provides no statute of limitations, meaning an employee will not be time barred by statute from bringing a claim.
Definitions
"Employer" is defined very broadly to include "any person, institution, organization or other entity that pays salary or wages for work performed or has control over employment opportunities" in both the public and private sector, including any successor to any such entity.
"Service" is defined as duty on a voluntary or involuntary basis, including examinations to determine fitness for duty.
Notice Requirements
An employee requesting military leave must provide his or her employer advance notice (oral or written), unless doing so would be impossible or unreasonable. Notice of intent to return to work and/or a reapplication for employment may also need to be provided at the conclusion of the leave, depending upon the length of time of military service. If the employee does not return to work and/or re-apply as required, the employer may not terminate but instead must apply its practices and/or established policies relating to other absences.
For employees serving less than 31 days or completing fitness for duty tests, the employee must return to work no later than the beginning of the first full regularly scheduled work period on the first full calendar day following completion of service, plus time for travel to his or her home, plus 8 hours. If it is impossible or unreasonable for the employee to report at such time, then the employee must report as soon as reasonably possible.
For employees serving more than 30 days but less than 181 days, the employee must submit an application for re-employment with the employer not later than 14 days after the completion of service. If it is not possible or reasonable for the employee to re-apply in that time frame, the application must be submitted on the next full calendar day when it becomes possible or reasonable.
For employees serving more than 180 days of service, the employee must submit an application for re-employment not later than 90 days after service is completed.
Length/Benefits of Leave
The USERRA requires employers to grant unpaid military leave of up to five years, cumulative for all leave taken for military service. There is no length of service requirements (e.g., as found in the FMLA) to be eligible for such leave. There are, however, several types of absences related to military service for which a leave of absence must be provided in addition to this five year entitlement: (1) time spent completing the initial period of obligated service; (2) time in which the employee reasonably spends seeking orders releasing him/her from service; (3) time required to fulfill additional training requirements determined by the military to be necessary for professional development; or (4) time during which the employee is ordered to remain on service under other federal laws. Leave may be extended for up to two additional years for an employee who is recovering from an injury or illness incurred or aggravated during military leave of absence. If, at the end of that additional two-year period, reporting or reapplying is not possible or reasonable, the leave must be extended until it is possible or reasonable for the employee to report or reapply. Employees dishonorably discharged or discharged for "bad conduct" are not entitled to reinstatement, nor are employees discharged under certain other circumstances.
In addition, employees on leave must be treated the same as other employees on non military leaves, and may be required to make co-payments if those on non military leaves are required to do so. Thus, if you are a FMLA covered employer and have FMLA eligible employees, you will be required to provide health benefits to an employee on military leave under the terms of FMLA (or any more generous provisions your company may have adopted) even if the employee on military leave is not FMLA eligible. In the absence of any FMLA qualifying event, this leave may not be counted toward the FMLA 12 week leave entitlement. The only (albeit extremely unlikely) exception to this obligation is if the employee has provided written notice of his or her intent not to return to work after conclusion of military service.
Following the conclusion of any health insurance continuation, employees on military leave may elect to continue coverage on terms similar to COBRA coverage, and may be charged 102% of the premium, unless the military leave is for less than 31 days, in which case such employees may only be required to pay their insurance co-payment.
Returning an Employee to Work
When employees return from leave, employers may require documentation establishing that the reapplication for employment is timely, that more than five years of leave has not been taken (taking into account the exceptions and permissible extensions), and that reinstatement rights have not been lost (e.g. due to dishonorable discharge, etc.). As with the notice of intent to return, the time in which an employer must return the employee to work depends on the length of the employee's military service.
Significantly, the job to which the returning employee must be reinstated is controlled by a unique and extremely pro employee requirement, commonly referred to as the "escalator" principle. As you know, for most other legally required leaves, the employee is only entitled to return to the same or similar job he or she held prior to the leave. With military leave, as more fully described below, the employee must be returned to the same position he or she would have held had the leave never been taken, meaning in some cases, particularly with employees with a history of periodic promotions and raises, the employee must be returned to a better job. Employees, in other words, gets back on the job promotion/pay increase "escalator" at the same place they would have been if the leave was never taken, rather then the place they "got off" the escalator to take protected military leave. In the absence of a rigid lock step promotion/pay increase program, it will be difficult in most cases to make such a determination, particularly in cases of lengthy military service. The employer will bear the burden of proving the job (status, pay and benefits) to which the employee is returned meets this "escalator" principle.
Specifically, for an employee with less than 91 days of military service, the employee must be returned to the same position the employee would have held if the military leave had not been taken, if the employee is qualified to perform that job. If the employee is not so qualified, the employer must make reasonable efforts to train the employee to become qualified for that job. If those efforts fail, the employee must be restored to the same position held at the time the leave began.
For an employee with more than 90 days of military service, the employee must be returned to the same position he or she would have held if the military leave had not been taken, or a position of like seniority, status and pay, if the employee is qualified for one of those jobs. If not, the employer must make reasonable efforts to train the employee, and if those efforts fail, to return the employee to the same position he or she held prior to the leave, or a position of like seniority, status and pay.
If the employee incurs or aggravates a disability during military service, the employee must be reasonably accommodated in order to be placed into the position the employee would have held had the employee remained at work rather than served in the military. If the employee cannot perform that job, even with accommodation, the employee must be placed into a job of equal seniority, pay, and status for which the employee either is qualified, or can be trained to do with reasonable effort by the employer. If the employee's disability prevents the employee from performing either job, the employer must provide another job that may be of lesser status and pay, but the employee must be given full seniority.
Exceptions to Requirement to Re-Employ
Re-employment is not required if (1) the employer's circumstances have changed so significantly that re-employment is impossible or unreasonable; (2) retraining or accommodating an employee would pose an undue hardship; or (3) the employment prior to military leave was for a brief, non recurrent period with no reasonable expectation that the employment would continue indefinitely or for a significant period. As you might expect, these exceptions will be very narrowly construed, and the employer will bear the heavy burden of proof.
Rights of Returning Employees
As indicated above, those returning from leave are treated according to the "escalator" principle, meaning the employee returns not to the job he or she left but to the job the employee would have had if he or she had remained continuously employed. In many circumstances, employees will have to be returned to a better position than they left (in terms of status, pay and/or benefits) and the employer bears the cost and responsibility of training them to perform the new responsibilities. This same principle applies to benefits. Also, those returning from leave may not be treated as having incurred a "break in service" for pension vesting and participation. And all time spent in military service must be counted toward vesting and for determining pension benefit accrual. An employee on leave is also entitled to use any accrued unused paid time (i.e. vacation, sick, etc.) the employer provides for any reason.
Alteration of At-Will Status
Another unique right enjoyed by employees returning from military leave is that they may only be terminated "for cause" within the one year period following their return to work if their service exceeded 180 days. If the employee's service was for more than 30 but less than 180 days, then he or she may only be terminated "for cause" within 180 days following the return to work. "At-will" employment policies, or even specific employment contracts with such provisions, are unenforceable to the extent they are inconsistent with above described protections of the USERRA.
For more information or assistance, please contact one of the following partners in our Labor and Employment Group:
These materials should not be considered as, or as a substitute for, legal advice and they are not intended to nor do they create an attorney-client relationship. Because the materials included here are general, they may not apply to your individual legal or factual circumstances. You should not take (or refrain from taking) any action based on the information you obtain from these materials without first obtaining professional counsel and you should not send us confidential information without first speaking to one of our attorneys and receiving explicit authorization to do so.
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