In the Office: Being Called to Duty

When an employee is called to serve in the military, employers often bid farewell with mixed emotions. While there is a sense of pride associated with an employee who takes military leave, an employer can be left with a void in the business for an unknown duration. This is particularly difficult for the small business owner who loses a key employee.

So what exactly are an employer’s obligations to employees who are called to serve? Do you have to allow the leave? Do you have to pay the employee on leave?

A DEMANDING REQUIREMENT. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) guarantees certain employees the right to take time off work to serve in the military, be reinstated upon returning from the military and be protected from discrimination based on prior or anticipated military leave. In addition to USERRA, some state laws may impose similar or greater obligations on employers.

COVERAGE UNDER THE ACT. USERRA applies to all employers, regardless of size, and to every employee, regardless of length of service or part-time status (with the exception of workers employed for brief, non-recurrent periods), who is absent from employment due to "service" in the Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service, Army National Guard, Air National Guard or any other category of persons designated by the president at the time of war or national emergency.

"Service" includes voluntary or involuntary active duty, active duty for training, initial active duty for training and full-time National Guard duty. It also includes any absence needed for an examination to determine whether a person is fit to perform military duty.

NOTICE OF THE NEED FOR LEAVE. Employees must provide advance written or verbal notice of their need for military leave (USERRA does not define how much notice must be given) unless giving such notice is impossible, unreasonable or precluded by military necessity. Employers should require a copy of the military orders to document the need for the leave.

PAY WHILE ON LEAVE. USERRA does not require employers to pay for military leave. Some employers choose to pay for a portion of the leave or pay a portion of the employee’s wages. Salaried-exempt employees who leave for military duty and work for the employer in the same workweek must be paid for the entire week.

BENEFITS WHILE ON LEAVE. If the service period is less than 31 days, employers must continue health insurance and can only require employees on leave to pay their regular share of the premium. If the period of service is more than 31 days, the option to continue health insurance benefits for up to 18 months must be extended under the provisions of COBRA.

Military leaves may not be treated as breaks in service under pension plan benefits. For any vesting purposes, employees returning from military leave must be treated as if they never left.

ANTI-DISCRIMINATION CLAUSE. Employers cannot consider military service in employment decisions. Additionally, employers may not discriminate against those who exercised rights under the Act.

Perhaps most surprising are the termination provisions of USERRA: Employees who have served in the military for more than 180 days cannot be terminated without cause for at least one year following redeployment. They also are protected from termination without cause for 180 days if the period of service was between 30 and 180 days (this includes those employed at will).

Next month, we will review how business owners should respond when employees return from military leave – what are their reinstatement rights? We also will discuss how you can prepare and communicate these policies to your employees.

Jean L. Seawright is president of Seawright & Associates in Winter Park, Fla. She can be contacted at 407/645-2433 or jseawright@seawright.com.