In response to the terrorist attacks on September 11, 2001, President Bush has urged American citizens to gird themselves for a protracted form of war. One likely short-term consequence may be the call-up of a large portion, as many as 50,000 by some estimates, of the approximately 1.3 million military reservists across the country. More than 265,000 reservists assisted during the Persian Gulf War. The military reserves comprise nearly one-half of the United States’ armed forces. They also comprise significant elements of local business communities. If called to serve, reservists may be required to spend considerable time away from their homes, families, friends—and jobs. For reservists and their employers, the period of absence may be fraught with uncertainty. Reservists wonder: Will I lose my job? Am I entitled to benefits while on leave? Employers ask: Is there an obligation to compensate during a period of service? To continue health insurance or other benefits? To reinstate?

The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301-4333, answers these, and many other, questions. Enacted in 1994 in the wake of the Persian Gulf War, USERRA clarifies and expands the employment rights of noncareer service members who leave employment, voluntarily or involuntarily, for active duty or training. It builds on the foundation laid by its predecessor, the Veterans’ Reemployment Rights Act of 1974, 38 U.S.C. §§ 2021-2027.

Employer Coverage/General Purpose. USERRA applies to all employers, public and private, regardless of size. The collective thrust of the law is two-fold: (i) to prohibit employment discrimination against current or former service members or persons who have applied to join the uniformed services; and (ii) to provide service members a measure of job security both during service-related leave and following reemployment. The basic concept is that, for employment purposes, reservists generally are to be treated as if they had never taken a period of leave in the first place.

How Much Leave Are Service Members Entitled To? Service members have the right to take up to five years of job-protected military leave with any particular employer. The five-year figure is cumulative. There is no limit on the frequency of leave, just its collective duration. Further, specific rules govern precisely what type of leave may or may not be counted against the maximum. For example, active service during a war or national emergency declared by the President or Congress is not to be counted. Nor is certain time devoted to training or professional development.

What Must Service Members Do To Be Entitled To Reemployment? There are three primary requirements. First, the service member must give the employer timely notice of the need for leave for military service. Notice may be written or verbal. The statutory language simply requires that notice be provided before military service begins. No specific amount of notice is designated. Further, the failure to provide notice may be excused in cases of national emergency. Second, the service member must have been discharged from service under honorable circumstances. Finally, the service member must timely apply for reemployment. The period within which application must be made varies with the length of the military service, as follows:

What Job Must Returning Service Members Be Given? The service member is entitled to the job he or she would have had if leave for military service had never been taken in the first place. This means the service member is entitled to promotions or advancements that would have been attained absent the leave. Further, if, due to the period of leave, the service member is not fully qualified for the position to which he or she is entitled, the employer must provide training and other assistance to help the worker develop the necessary skills. If those efforts fail and the returning service member remains unqualified for the position, the employer must place the service member in the job he or she held before beginning military leave. Finally, if the employee is not qualified for his or her original position, he or she must be placed in the position that is most similar to that position. An employer is not required to reemploy a returning service member where (i) doing so is “impossible or unreasonable” because of a change in the employer’s business circumstances or (ii) the initial employment was of such a brief or nonrecurring nature that it carried no reasonable expectation of continuing to be available.

Are Temporary Workers Entitled To Reemployment? No. Service members who were employed on a temporary basis before leaving for military service are not entitled to reemployment. However, they are protected by USERRA’s antidiscrimination provisions.

Are Service Members’ Jobs Protected After Reemployment? Yes. This is the provision that takes most employers by surprise. Upon reemployment after more than 30 days of leave, a service member may be discharged only for cause for a given period of time. This is so regardless of whether the service member was an at-will employee prior to military leave. The duration of the cause standard varies with the length of the worker’s military service. After completing between 31 and 180 days of service, a service member may be discharged only for cause during the first six months of reemployment. After more than 180 days of service, the cause standard applies during the first 12 months of reemployment.

Are Employers Required To Accommodate Service Members Who Become Disabled During Military Service? Yes. Employers are required to reasonably accommodate the new or aggravated disabilities of returning service members. In this context, the reasonable accommodation obligation is interpreted as it is in the more familiar environs of the Washington Law Against Discrimination and Title I of the Americans With Disabilities Act. Consequently, the three guiding principles remain unchanged: (i) the accommodation obligation is limited to those steps necessary for the disabled service member to perform the essential functions of the job; (ii) an accommodation is not required if it imposes undue hardship on the employer; and (iii) if, even with reasonable accommodation, the disability prevents the proper performance of the job, the employer may lawfully discharge or refuse to reemploy the worker.

Must Service Members Be Paid During Military Leave? No. USERRA does not require continuation of compensation. However, Washington state law, specifically RCW 38.40.060, provides that employees of the state, or any county, city or other political subdivision of the state, must receive their normal pay for up to fifteen days of military leave per year. Further, USERRA requires that returning service members receive all general, across-the-board pay raises which they would have received absent the period of leave.

Do Service Members Have A Right To Access, Accrue Or Otherwise Continue Certain Benefits During Military Service? Yes. USERRA gives service members a COBRA-like right to continue their health insurance coverage at their own expense for up to 18 months. The precise cost to the service member varies with the length of his or her military service. If the period of service is 30 days or less, the service member is responsible for paying that share of the premium he or she had to pay during active employment. For longer periods of service, however, the service member must bear the entire cost of the premium and, as under COBRA, may be charged an additional 2% as an administrative fee. Under no circumstance may the service member be charged more than 102% of the premium. If health insurance is discontinued during military leave, the returning service member must have the coverage reinstated without waiting periods or other exclusions, other than those that would have applied even absent the period of service. During leave, service members must be permitted to access any accrued paid time off. However, they cannot be required to use these benefits. USERRA does not require employers to allow service members to continue to accumulate benefits that are earned on an accrual basis, such as vacation and sick leave, during periods of military leave.

How Does USERRA Affect Pension Plans? Reemployed service members generally are entitled to the pension rights and benefits they would have enjoyed had they remained continuously employed. This means, among other things, that military service cannot be treated as a break in service and that employers must continue to make all contributions to pension plans that would have been made if the employer had not been on military leave. In addition, an employee who would have become eligible for plan participation had he or she worked during the period of leave must be placed in the plan as of the date of initial eligibility. There is no requirement, however, to give credit for forfeitures or earnings attributable to the period of leave.

What Are The Penalties For Noncompliance? The United States Department of Labor’s Veterans’ Employment and Training Service (VETS) administers USERRA. Service members who are denied the benefits of USERRA may be awarded injunctive relief, lost wages and benefits, double damages (for willful violations) and attorney fees.