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Military Service and Reemployment Rights

America's military relies increasingly on reservists to accomplish its many missions. While these troops are proud to serve, a lengthy tour of active duty away from regular employment can burden the soldier and their family.

Several legal protections for reservists and service members called to active duty help ease that burden. The Uniformed Services Employment and Reemployment Rights Act (USERRA) is among these. This act is vital in ensuring service members can return to civilian employment without disadvantage.

What is the uniformed services employment and reemployment rights act?

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) applies to employment after military service or training. USERRA intends to help service members find and maintain meaningful employment after service.

Under USERRA, returning service members have the right to be reemployed into the job. Their reemployment should be at a level they would have had if they had not been away for military service. They are also entitled to the same status, seniority, pay, and other benefits. This "escalator principle" intends to provide the same seniority, status, and pay they would have had if they were not serving.

In general, the law guarantees that military service members:

  • Face no discrimination from their employers based on their present, past, or future military duties.
  • Are reinstated in a timely manner to their civilian job after fulfilling their military duties.
  • Do not suffer any setbacks in their civilian careers because of their military duties.

Employers should make reasonable efforts to train returning service members. This involves training them to update the skills of returning employees.

USERRA may excuse the reemployment of returning service members under certain conditions. This can occur if changes in the employer's circumstances make it impossible or unreasonable for them to rehire the person. For instance, the employer had to conduct layoffs. The law does not require reemployment if the layoffs affect the position of the returning employee regardless of their military service.

Who is covered by USERRA rights?

USERRA protects the following groups:

  • Members of the armed forces
  • Reserves
  • Members of the National Guard
  • Other uniformed types of services. This includes the National Disaster Medical System and the Commissioned Corps of the Public Health Service.

What criteria must employees meet to be eligible for reinstatement under USERRA?

USERRA mandates employers to rehire military service members returning from their military duty. But, the returning employee should meet these eligibility requirements:

  • The person was absent from work because of their military duty.
  • The person gave advance notice to the employer of their leave from work because of military service. An exception applies if military necessity or undue hardship prevents the person from giving timely notice.
  • The total period of military service with the employer did not exceed five years.
  • The person was not discharged from military service under dishonorable or punitive circumstances.
  • The returning employee immediately reported to their civilian job. They should also send a timely reapplication for employment unless doing so is unreasonable or impossible.

However, USERRA limits five total years of military service with one employer. This means you can only claim your reemployment rights if your cumulative absence due to military service does not exceed five years. An exception applies in some instances. Your employer should not include the following circumstances in counting the five-year limit:

  • National emergencies
  • Reserve drills
  • Regularly scheduled military training

For more details, you can check the U.S. Department of Labor's (DOL) USERRA Advisor website.

Do people who serve in the military have a right to reemployment with their employers after their service ends?

Yes. If you are an employee called to military duty, federal law considers you to be on unpaid leave of absence. Federal law also gives you the right to be reemployed in the job you would have had you not gone on active duty.

USERRA prohibits employment discrimination committed against former military service members. Employers should not deny employment to individuals based on their current military obligations, past military service, or their intent to be of service. They should not face denial of employment, reinstatement, promotion, retention in employment, or other benefits of employment.

USERRA covers both public and private employers. The Office of Special Counsel, together with the Department of Labor (DOL), enforces and investigates USERRA claims affecting federal government employers.

What are the reemployment notification deadlines for returning service members?

The waiting period to report to work after your release from military duty is as follows:

  • Military Service for Less Than 31 Days: If you have been away for less than 31 days, you should report to work at the start of the next regular work period. This should be on the first full day after your release from duty, giving you enough time to travel home and rest for 8 hours.
  • Military Service for 31 to 180 Days: If you have been away for more than 31 days but less than 181 days, you should apply for reemployment within 14 days after your release from service.
  • Military Service for 181 Days or More: If your military duty was longer than 180 days, you should reapply within 90 days of release.

Note that the maximum absence that will allow you to keep your reemployment rights is five years. But, the law extends the deadline in some cases. For instance, the deadline is extended to service members hospitalized or recovering from service-connected illness or injury.

Health Insurance Rights for Returning Military Service Members

If you are a military service member who reapplied to your former employer, you can re-enroll in your employer's medical or health insurance plan. However, your employer is not required to cover any injuries or illnesses from your military service. This includes those conditions caused by or aggravated by your military service. Those injuries are generally covered by military health coverage.

If you have been absent for 30 days or less, you can continue your medical coverage at the cost before your military service. If your military duty is more than 30 days, the military health care plan will cover you and your dependents. For more information about Veteran Affairs health plan coverage, visit the U.S. Department of Veterans Affairs.

Additional Resources for Veterans Seeking Employment

After returning from military duties, many veterans look for new career opportunities. Some require additional employment support. The DOL provides resources to assist veterans transitioning from military to civilian employment.

The Veterans' Employment and Training Service (VETS) helps veterans and their spouses by equipping them for civilian employment. VETS offers training and resources through its website.

An agency of the Department of Defense called the National Committee for Employer Support of the Guard and Reserve (ESGR) also provides several services. They offer free USERRA consultation, education, and informal mediation. ESGR can answer questions related to USERRA. They can also respond to employment disputes of military servicemembers.

Seek Legal Help With Your Reemployment Rights

If you are a military servicemember facing difficulties in your reemployment process. Or, if you need clarification on your military leave, consulting an employment attorney is helpful. An attorney experienced in handling military issues may give you legal advice tailored to your case. They can help you understand your rights and assist with any problems with your employer. Do not hesitate to seek legal help to protect your career and ensure that your rights under federal laws are protected.

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