In response to the recent COVID-19 pandemic, governors from all 50 states, Puerto Rico, Guam, the U.S. Virgin Islands and Washington, D.C. have chosen to mobilize National Guard troops to aid the government’s response.  Some of the activities Guards members are being asked to assist in include delivering food to those in the hardest hit regions, providing critical personal protective equipment to medical personnel and first responders, supporting testing facilities, and providing transport assistance to support health care providers.  In this time of crisis, our troops are being relied upon to assist with many critical functions to ensure the success of the United States’ COVID-19 response. 

This is a good time to refresh companies on the various employer requirements under USERRA, the Uniformed Services Employment and Reemployment Rights Act and attendant state military leave law requirements. 

All employers, regardless of size are covered under USERRA which entitles employees to take job-protected leave to engage in military service.  It is important to note that National Guard members may perform service under either federal or state authority, but only Federal National Guard service is covered by USERRA.  In situations where military employees are called to active duty through a state’s authority, state military leave laws or leave for emergency relief workers may apply. 

Leave under USERRA is unpaid and employers must permit, but not require, employees to use their accrued, but unused paid time off during their leave.  Employers often choose to continue to pay employees on military leave either their full wages or the difference between their civilian pay and military pay.

Employees on military leave under USERRA are entitled to receive the same rights and benefits not based on seniority that are available to employees on non-military leaves of absence, whether paid or unpaid. 

If there is a variation among rights and benefits provided to employees on different types of non-military leaves of absence, the service member is entitled to the most favorable treatment, as long as the non-military leave is comparable. For example:

·       If other employees on comparable leave are permitted to accrue vacation and other paid time off during the leave, employees on military leave must also be permitted to accrue vacation and other paid time off while on leave.

·       An employee on a five-year military leave will not be entitled to receive the same rights and benefits as an employee on a three-day bereavement leave because the leaves are not comparable.

Employers generally are required to reemploy service members on their return from military service, subject to certain conditions, if:

1.     The employer received advance notice of the military service.

2.     The employee’s cumulative military service does not exceed five years during the employee’s employment relationship with the particular employer.

3.     The employee returns to work or submits an application for reemployment in a timely manner.

4.     The employee was not separated from the uniformed services for a disqualifying reason.

Qualified returning service members are entitled to reemployment in the position they would have attained, with the same seniority, status, pay, rights, and benefits they would have achieved had they not been absent from work for military service.  Employers should be aware of what is called the “escalator principle” which means that employers should restore the employee to a position that the servicemember “would have attained with reasonable certainty if not for the absence due to uniformed service.”  Essentially, when a service member returns from military service, they step back onto the escalator as if they had been continuously employed.

Under USERRA, reemployment must happen quickly upon a service member’s return: two weeks from the employee’s application from reemployment unless there are other extenuating circumstances. 

Employers should also be aware that the recent mobilization of National Guard troops has been primarily at the state level.  To that end, employers will need to examine their own state military leave and emergency relief worker leave laws that track very closely with the federal USERRA law.  Most state military leave laws require that employers give qualifying employees unpaid military leave without losing pay, time, efficiency ratings, or annual vacation or sick leave allotments.  Many states also have similar job restoration statutes that require employers reinstate employees to the position the employee held before military leave or a substantially equivalent position as it regards pay, seniority, benefits and other terms and conditions of employment.  Please be sure to check your state laws if an employee provides you notice of an upcoming deployment.

It is worth noting that during these uncertain times, many companies are having to conduct mass layoffs or closures due to the economic turmoil caused by COVID-19.  If a service member is laid off with recall rights before commencing uniformed service or while fulfilling their service obligations, they may be entitled to reemployment on return if the employer would otherwise have recalled that employee during the period of service.  However, USERRA job restoration rights do not entitle a returning service member to more benefits than they otherwise would have been entitled to, so if a company has engaged in permanent layoffs of closures, the service member may not be entitled to job restoration. 

As always, the attorneys here at myHRcounsel are happy to answer all of your USERRA and military leave questions.