United States: Military Leave

With military reservists being "called up" due to the tragic events of September 11th, 2001, many employers are beginning to encounter questions concerning military leave. Under a federal law known as the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 USC section 4301, et seq. ("USERRA"), employers:

1. May not discriminate against employees with military service obligations;

2. Must provide employees with leave and reinstatement rights; and

3. Must continue (or allow the employee to continue) certain benefits.

Florida law supplements the Federal law in several respects, namely, in compensation and leave of absence protections for employees who work for public employers.

USERRA prohibits discrimination against employees or prospective employees in hiring, retention, promotion or any employment benefit because of past, present or future application for, or membership in, the uniformed service. In practice, this means that employers should watch for critical or derogatory comments regarding an employee's military service or time off needed to train for that service. In addition, employment applications and interviewing techniques should be free from questions relating to potential military service obligations that could have an adverse impact on those in the uniformed services.

USERRA applies to all employers, both public and private, regardless of their size.

USERRA applies to all types of military "uniformed services." This includes the Armed Forces (Army, Navy, Air Force, and Marines), the Army National Guard, the Air National Guard, the Coast Guard, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in the case of a war or emergency.

To be covered by USERRA, an employee must meet five conditions:

1. Be employed or have applied for employment with a civilian employer
2. Provide notice, either verbally or in writing, to the employer prior to leaving the job for military duty, unless exigencies of military service precluded the opportunity to give such notice
3. Not have exceeded the 5-year cumulative service standard (i.e., absence of more than five years due to Reserve service while working for one employer)
4. Not have been released from the period of service for which s/he gave notice under:
1. Other than honorable conditions; or
2. Bad conduct discharge; or
3. Dishonorable discharge
5. And, report back to the employer in a timely manner or submit a timely application for employment following the release from the period of service for which s/he gave notice.

An employee must report back to the civilian job within a specified period of time following the end of the period of military service.

Reemployment Rights

Except with respect to a veteran, whose disability occurred in or was aggravated by military service, the position to which a veteran is reinstated is determined by priority, based on the length of military service. The rules are as follows:

A veteran with a service-connected disability who cannot be reasonably accommodated in the job to which s/he would otherwise have been entitled, may be placed in another equivalent position that s/he is qualified to perform.

There is a special protection against discharge. An employer may not discharge a reinstated veteran except for cause for:

1. 180 days if the absence was from 31 to 180 days;
2. One year if the absence was greater than 181 days.

Leave under USERRA is unpaid, except that a person may elect to use any vacation, annual or similar accrued paid leave. Employers may not require employees to use accrued paid leave during military leave (38 USC section 4316). The employee is entitled to:

1. Accrued seniority, and other benefits determined by seniority that s/he had at the commencement of the service. The employee also is entitled to any additional seniority and benefits s/he would have attained, with reasonable certainty, had s/he remained continuously employed.
2. Any non-seniority benefits offered by the employer to employees on various types of furlough or leave of absence must also be offered to the service member.
3. The employer must continue to make the employer contributions to a pension or profit sharing plan, as if the employee was still actively employed. Further, a reinstated employee may not be treated as having had a "break in service" for pension purposes because of military service, and the period of military service must be counted as employment for purposes of vesting schedules and accrual of pension benefits.
4. The employee has the right to elect to continue to be covered by the employer-provided group health insurance for up to 18 months at the employee's expense under COBRA (except that the employer must continue to pay its usual share of the premium for leaves lasting up to 31 days). Further, no coverage exclusion or waiting period may be imposed on a reinstated employee (or on any covered dependent) because of his/her absence for military service (38 USC section 4317).

On a related note, a new federal law also allows military reservists to take time off from work to serve as honor guards at veterans' funerals (Veterans Benefits and Health Care Improvement Act of 2000, Public Law 106-419). The law took effect April 30, 2001.

• Public and private employers are prohibited from discharging, reprimanding, or penalizing in any way an employee who is called to active duty by the National Guard. Fla. Stat. §250.482.

• Armed Forces