Military Leave

Published: 05-24-2006
USERRA is codified in Title 38, United States Code, Sections 4301 through 4333. It applies to all employers and is intended to minimize the disruption that military service can cause to both employers and employees.

USERRA is codified in Title 38, United States Code, Sections 4301 through 4333.

It applies to all employers and is intended to minimize the disruption that military service can cause to both employers and employees. USERRA prohibits discrimination against employees because of their service to their country and mandates that these service men and women cannot be denied initial employment, re-remployment upon return from service obligations, promotion or any employment benefits.

Let's go over some of the highlights in USERRA: an individual is required to give advance notice either written or verbal to the employer prior to departing for military service; service includes active or inactive duty under federal authority but does not include state call-ups of Army or Air National Guard members; however, there may be protection under state law is that is comparable to the protections provided under the USERRA;

insurance provided by the employer shall continue at the service member's request for an 18 month period; if the period of service is 30 days or less, the crew member is responsible for paying the normal employee cost,
if any, for the coverage. USERRA allows the crewmember to elect to continue employer provided health insurance for a period up to the first 24 months of military service. If the period of service is 31 days or more, the
crewmember may be required to pay up to 102% of the total insurance premium;.

military service is not to be considered a break in employment for pension benefit purposes;

time spent in military obligations must be considered service with an employer for vesting and benefit accrual purposes;

USERRA does not supersede, nullify or diminish any federal or state law, company policy, union agreement, practice or contract that provides greater rights or benefits to service members;

USERRA sets a 5 year cumulative limit on the amount of military leave that a crew member may perform and still retain employment rights. There are limited exceptions to the 5 year limit, and drills, annual training, involuntary active duty extensions and recalls due to a war or a national emergency are not counting in the 5 year cumulative total.

Service members are not required to request permission to be absent for military leave, but provide notification of pending military service. Crew members do not request military leave; they merely provide written or verbal notification of future military obligations that will require their absence from work. It is beneficial to both the Company and the crew member to provide this notice as early as possible. Crew members cannot be required to use earned vacation for a military leave of absence.

The following are some excerpts from a pamphlet prepared on USERRA by the United States Attorney's Office, District of Arizona, to give both employers and employees some direction on this complicated area.

Can an employer require the service member to provide documentation of military service? After periods of military leave that exceed 30 days in duration, the employer does have the right to request such documentation, thereby establishing the service member's basic eligibility for protection under USERRA.

Can an employer require an employee to reschedule drills, annual training or other military obligations? No. If the service member must be absent during a time of acute need for the employer, the employer may contact the military commander of the service member's unit in order to determine if the duty can be rescheduled or performed by another service member.

If the commanding officer determines that it is not possible to reschedule the service member, the employer is required to permit the employee to perform his/her service duty as requested.

So what do you do if you experience employment problems as a result of a military obligation? According to USERRA, you should first notify your command. If local efforts fail to resolve the issue, contact Ombudsmen Services. These individuals are trained to provide information and mediated assistance.

In a nutshell, a crew member should never be approached by the Company with a request that military leave be rescheduled or postponed, or pressured to use vacation time for the required military leave. The Company does have the right, however, to call the commanding officer directly and inquire as to the ability to reschedule any requested duty, or if it would be possible for the duty to be performed by someone else.

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