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Laws protect employees called to perform military service

November 23, 2010
With the activation of thousands of military reservists, employers no doubt want to understand their obligations to any workers called to duty. Any federal obligations are governed by the Uniformed Service Employment and Reemployment Act (USERRA). Illinois also has a statute, the Servicemen's Employment Tenure Act (SMETA). There are many questions commonly asked about military leave: Is an employee required to give the employer advance notice before leaving for military service? Unless precluded by military necessity, the employee, authorized representative of the employee, or uniformed representative must give verbal or written notice to the employer in as timely a manner as possible. If notice is not possible because of military necessity, the employer still must comply with USERRA. Who is protected under the law? The reinstatement benefits apply to individuals performing, or who have performed, military service. The Act provides an expansive definition of military service, including but not limited to: Army, Navy, Marine Corps, Air Force, Coast Guard, reserve units, National Guard, and commissioned Corps of the Public Health Service; and any other category of persons designated by thePresident in time of war or National emergency. Are all employers bound by the military leave law? Yes. All civilian employers, regardless of size, are bound by USERRA. What happens to an employee's health insurance while on leave? Under USERRA, an employer must continue to cover an employee who performs military service for up to 18 months. The employee cannot be required to pay more than 102 percent of the health care costs. If the employee's military service is for 30 days or less, the employee can only be required to pay the employee's share of the health care cost while on leave. What happens to an employee's pension while on leave? Time spent in the military must be counted for vesting and benefit accrual purposes under defined benefit plans, defined contribution plans, and profit sharing plans. In other words, the employer must continue making contributions in the same manner as if the employee had never left service. Do the benefits of employee stock ownership accrue to an activated reservist? Yes. What happens to an employee's outstanding 401(k) while on military leave? If an employee called to military service has an outstanding 401(k) loan, pursuant to the Federal Soldiers' and Sailors' Civil Rights Act, the interest rate on this outstanding loan may be lowered to a cap of 6 percent during the period of active duty. Must an Illinois employer continue to pay an employee who is on military leave? Neither federal nor Illinois law requires an employer to continue paying employees while they are absent due to military service. When an employee returns from military service, must the employer reinstate the employee? Yes. The employer must reinstate a returning member of the military service to his/her former position with the same status, seniority, and wage increases as if the person's employment has not been interrupted by military service. If such employee is not qualified to perform the duties of his/her prior position because of a service-related disability, but can perform the duties of another position, the employer must place the person in the other position. If there are multiple open positions that the employee could perform, the employer must restore the employee to the position that is the most consistent with the employee's prior job in the areas of seniority, status and pay. If an employee left to enter military service but was rejected due to lack of qualifications, the employer must reinstate the employee to his same position without loss of seniority and wage increases. If the employee remains qualified for the former position, but the pay and position is unavailable, then the employer must place the employee in a position of like seniority, status and pay. How long must the employee's job be held open? The employee's job must be held for him/her for at least five years-sometimes longer, when an employee must remain on active duty due to a war or national emergency. If an employee has been hospitalized because of a service-related illness or injury, the employer must hold the employee's job open for two years. Are there any exceptions to an employee's reemployment rights? An employer need not reemploy a person after military service if the employer's circumstances have changed such that reemployment would be impossible or unreasonable. An example of this type of situation: A reduction-inforce would have included the employee's position. An employer also need not accommodate an employee's service-related disabilities, if to do so would cause the employer undue hardship. When must an employee apply for reemployment? Under Federal law, if the employee's military service lasted for less than 31 days, the employee must report to work by the next scheduled shift, plus eight hours to allow for a safe return home. If the service last more than 30 days but less than 181 days, the employee must report to work within 14 days after completing service. If the service lasted longer than 180 days, the employee must report to work within 90 days after completing service. Illinois law may be construed to afford the employee with up to 90 days to apply for reemployment after any period of military service. After an employee who has performed military service is re-employed, what protection does the employee have against furture discharge? If the employee's service lasted more than 30 days but less than 181 days, the employee cannot be discharged without cause for six months. Employees who served for 181 days or more cannot be discharged without cause for one year. What other types of protections does the USERRA provide to employees? Employment discrimination because of past, current or future military obligation is prohibited under the Act.Furthermore, employers are prohibited from retaliating against anyone who files a complaint, testifies, assists or otherwise participates in an investigation, or otherwise exercises any right under the USERRA.T he preceding information is offered by Fisher & hillips LLP, a national law firm that represents employers in labor and employment matters.