September 26, 2024
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects military service members and veterans from employment discrimination based on their service. The law provides several protections, including the right to return to civilian jobs after serving in a uniformed service. Such services include the Reserves, National Guard, the Armed Forces, and the Commissioned Corps of the Public Health Service.
Right To Reemployment
The law ensures that service members do not experience discrimination in their civilian careers based on their past, present, or future military service. The USERRA also guarantees a quick rehire once they return from their duty.
According to the “escalator” principle, employers must re-employ the returning individuals “in the position they would have occupied with reasonable certainty if they had remained continuously employed, with full seniority.” Sometimes, they could return to a higher or lower position or a different job. In other cases, they may have the returning employee laid off.
Military service members protected by the USERRA should also know about the Act’s limitations. For example, undergoing service beyond five years could exempt them from reemployment protection with their current employer. Otherwise, service members must return to their jobs promptly for the reemployment protection to apply. The timeframe varies based on their length of service.
Health Insurance
Another benefit USERRA offers covered individuals is the right to continue their employer-provided health insurance. According to the USERRA, the insurance may cover 24 months of the individual’s time in uniformed service. Otherwise, the individual may have it reinstated without exclusion or a waiting period after serving. However, an exception allows for exclusions for service-related injuries or illnesses.
Disqualification
Employers should also know that some discharge statuses disqualify an employee from USERRA coverage. Such disqualifications include:
“1. Separation from the service with a dishonorable or bad conduct discharge.
- Separation from the service under other than honorable conditions. (Regulations for each military branch specify when separation from the service would be considered ‘other than honorable.’)
- Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war. (Section 1161 (a) of Title 10.)
- Dropping an individual from the rolls when the individual has been absent without authority for more than three months or imprisoned by a civilian court. (Section 1161 (b) of Title 10.)”
Disability
USERRA also includes regulations covering the requirements for reemployment if employees become disabled during their service. The law requires employers to accommodate the employees to fulfill the requirements of their reemployment job. Sometimes, returning employees cannot perform their duties even with reasonable accommodations. Such cases require the employer to provide a position with similar terms of pay, seniority, and status. However, employers can claim “undue hardship” when unable to accommodate employees returning to work with disabilities.
Pay
USERRA does not specify when employers must continue paying employees in military service. Instead, it requires employers to provide “such other rights and benefits” as typically offered to other employees on furlough or leave with similar status and seniority. In many cases, such benefits vary based on status and seniority. As such, USERRA requires employers to provide returning service members the most favorable benefits. State or local laws could provide better benefits to returning service members than the federal government offers.
Employers should familiarize themselves with USERRA to ensure compliance with the Act. The above touches upon the basics of the Act.