Dispatch Advisory
Regarding Military Leave
September 2001

In the wake of this month's terrorist attacks in New York, Washington D.C., and Pennsylvania, thousands of members of the National Guard and Reserves are being called up to active duty. Employers throughout the country are preparing to address questions regarding the rights of their employees to take military leaves of absence as well as reemployment rights. This Advisory is designed to provide an overview of those rights and employers' responsibilities with regard to military leave.

Federal and State Laws Govern Military Leave

The federal Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") governs the rights of employees who seek leave from their jobs to serve in the Unites States uniformed services. USERRA applies to all private and public employers and provides certain reemployment rights to all full-time or part-time employees. Temporary employees are not entitled to re-employment rights following military service. In addition to federal law, many states have laws which address military leave. States may provide for greater benefits than those provided under USERRA, so employers are cautioned to consider whether states in which they employ individuals, require greater benefits to those employees on military leave. Massachusetts state law provides coverage similar to the federal statute.

Who Is Eligible For Military Leave?

Military leave affects those in the uniformed services and includes the United States armed forces as well as the National Guard and Reserves. Service includes training as well as active duty.

Eligible Employees Must Give Notice Of Leave To Employers

USERRA protects only those employees who provide employers with advance notice of their absence from employment for service. Notice should be given to the employer as soon as practicable, however the notice requirement may be excused when it is either impossible or unreasonable to provide advance notice.

Rights Affected By Employees Requesting Military Leave

Essentially, employees requesting military leave are provided the following protections under USERRA: (1) continuation of certain employment benefits; and (2) reemployment rights.

Right To Employment Benefits

• Health Benefits

USERRA provides that employers must offer continued health insurance coverage for employees on military leave and for their dependents who are normally eligible for coverage under the employers' group health plans. Employees on military leave for less than 31 days are entitled to continued coverage and cannot be required to pay more than the contribution that active employees pay for the same coverage. For employees whose military leave is longer than 31 days, USERRA provides the right to elect continuation coverage under the group health plans for up to 18 months under the federal COBRA laws. Upon return from military leave, employers are prohibited from applying waiting periods or exclusions from coverage in most cases.

• Retirement Benefits

In general, an employee's period of military leave is deemed to constitute service with his or her employer for purposes of vesting and benefit accrual under an employee retirement benefit plan and, therefore, cannot constitute a "break in service" under the benefit plan. An employee returning from military service is entitled to any pension benefits that accrued prior to his or her departure plus any additional benefits which would have accrued during the leave period. While the federal law does not require employers to make contributions until the employee is actually reemployed, the employer must make contributions to the plan on behalf of the returning employee. In addition, if the employer maintains a defined contribution pension plan, an employee returning to employment following military leave is entitled to make up any contributions to the plan during his or her absence over a period of time that varies depending upon the length of military leave.

• Paid Leave

While USERRA does not require employers to provide paid military leave; many employers choose to offer compensation to employees in military service for varying amounts of time. In addition, employers may not require employees to use paid accrued time while on military leave, however, USERRA provides that employers must honor any employee's request for such accrued paid leave during military service.

• Reemployment Rights

In general, an employee returning from military leave has a right to be promptly reemployed in the position the employee held when he or she began the military leave or in a position with like seniority, status and pay so long as the employee is qualified for the position or can become qualified after "reasonable efforts" by the employer. In the event the employee suffers a service-related disability as a result of the leave, the employer must make "reasonable efforts" to accommodate the employee's disability. In addition, employees who serve in the military for a period of more than six months may not be discharged without cause for one year following the date of reemployment. Employees who serve for between one and six moths may not be discharged without cause for six months following the date of reemployment. In limited circumstances, the law provides for exceptions to reemployment rights in the event the employer's circumstances change so that reemployment is either impossible or unreasonable, for example, where a reduction in force would have included an employee on military leave.

Finally, it should be noted that state and federal laws governing military leave are designed to encourage the fair and equitable treatment of those employees in military service and to balance such treatment against business operations requirements. As the nation's leaders formulate a response to the terrorist attacks of September 11, 2001, employers would be wise to carefully prepare its military leave policies in order to address changes in workforce and business operations. In addition, employers should be mindful to watch for any proposed changes in federal or state laws relating to military leave as our government develops its responses to terrorist threats.

If you have any questions concerning your company's military leave policy or would like assistance developing such a policy, please contact Lisa Fleming at 617.443.9292 or through our firm's web site at lfleming@bromsun.com.

The Dispatch is not legal advice. For legal assistance or further information, please call the lawyer with whom you regularly deal at our firm or the authors of these articles.