March 18, 2015

about to go on a military leave of absence

Do you have an employee who is also a member of the uniformed services? Knowing that employee’s rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) can protect you and your business from potential claims. Note that USERRA applies to ALL employers, regardless of size.

Here are some common scenarios employers face, and what you need to know to deal with them successfully:

HIRING: “If I had known she could get deployed, I never would have hired her.”

  • Don’t let yourself be the target of a USERRA enforcement action. Employers are strictly prohibited from any form of discrimination based on military status. This includes initial employment, reemployment, retention, promotion, or the availability of any benefits.
  • The “uniformed services” include active duty service members, national guardsmen, and reservists.
  • Duties covered by USERRA include both voluntary and involuntary duties. This means that you may not discriminate against an employee who volunteers themselves for a special duty or deployment, for example, funeral honors duty.

TRAINING: “I can require my employee to use PTO for time spent in military training, right?”

  • NO. No forfeiture of benefits is permitted. You may not require your employee to use accrued vacation, PTO, or sick leave during military service. You also may not count military service as a deduction from other available leaves, such as maternity leave or FMLA leave.
  • Notice of Leave: Employers have the right to receive advance notice of service, unless military conditions make it impossible. However, do not confuse advance written notice with asking for permission. Service members are legally entitled to take leave and to be reemployed at the end of their term of service.

DEPLOYMENT: “Do I have to hold my employee’s job for a whole year?”

  • You are not required to go short-staffed during your employee’s deployment. However, you must offer a position of similar status, seniority, and pay upon your service member employee’s return. This could mean filling in their position with a temporary hire during the period of deployment. In limited situations when it is not possible for you to return your employee to their exact position, you can have them reapply when they return, with the understanding that you will find them a similar position within your organization.
  • For employees who are paid on commission, “similar pay” has been defined by the courts as an equal opportunity to earn the same amount of pay. This might mean providing access to the same number of clients or the same work schedule that the employee had prior to deployment.
  • 5 year limit. You are not required to hold your employee’s job for more than 5 years.

MAKE MILITARY LOA A POSITIVE EXPERIENCE.

When an employee tells you they are being deployed, it can be shocking, inconvenient, and disruptive for all parties involved. However, it doesn’t have to be that way! Use the following “Do’s and Don’ts” to make it a positive experience:

  • DO: Ask the employee if they know the general timeframe for departure and return.
  • DON’T: Ask for a specific return/start date.
  • DO: Plan for replacement staff. Give yourself a buffer on each side of the employee’s estimated dates. You will want extra time for training and unexpected changes in service dates.
  • DON’T: Ask whether the employee plans to return to work upon their homecoming. Even employees who tell their employers that they do not intend to seek reemployment do not forfeit the right to reemployment after service.
  • DO: Ask the employee if they plan to continue their employer-based health plan during their deployment.
  • DON’T: Suspend benefits that you provide to other employees who are on a leave of absence.
  • DO: Consider turning a negative into a positive by participating in the “Statement of Support Program.” This program could benefit your employee, your business, and your office morale.

Have a question, or need help with a specific situation in your practice? Members may call 866-414-6056 or email us at info@cedrsolutions.com to speak with an advisor.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.