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USERRA
The Uniformed Service Employment and Reemployment Rights Act provides enhanced rights and protections for voluntary and involuntary active military duty. Employers must grant an unpaid leave of absence for up to five years and reinstate veterans to the position they would have held if employment had not been interrupted. Full-time and part-time permanent positions are covered whereas temporary positions are excluded. Circumstances permitting, advance notice for leave (verbal or written) should be provided but is not required. Exempt employees who take military leave and work for the employer in the same week must be paid for the entire week. Benefit continuation is similar to the rights under COBRA. Health coverage is reinstated as if they had never left without waiting periods.
Military leave should not be considered a “break in service”. The Act requires that veterans receive any change in position or benefits to which they would have been entitled had they remained continuously employed. If an employer’s vacation policy is based on seniority, the employer must count the years of military leave as if they were years of actual employment to determine how many weeks of vacation returning veterans would then receive. If promotion was likely, veterans should be reinstated in the promoted position or in a position of like seniority, status, and pay for which they are qualified. If veterans cannot be qualified for the job they would have held and their inability to qualify is not related to a service-incurred or aggravated disability, they should be reemployed in any position of lower status and pay for which they are qualified, but with full seniority.
Veterans must provide notice of their intent to return to work within specified time frames depending on the military leave duration as defined in the Act. The returning veteran must be “promptly reemployed.” The Act protects returning veterans from dismissal without cause for a period of time after reemployment depending on their length of military leave.
The Uniformed Service Employment and Reemployment Rights Act exemptions include that reemployment may be “unreasonable or impossible” because the employer’s circumstances have changed, a disabled veteran’s reemployment is an undue hardship because of the disability, or the veteran was dishonorably discharged.