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Marching Orders For U.S. Workers Raise HR Issues: CCH Reviews What Employers and Employees Need to Know When Reservists are Called Up
(RIVERWOODS, ILL, May 5, 1999) – As a result of President Clinton’s authorization for over 33,000 military reservists to be called to duty in the Kosovo conflict, many American employers and employees are likely to face a number of workplace legal issues, according to CCH INCORPORATED (CCH), a leading provider of human resources and employment law information.
To help military reservists and their civilian employers understand and comply with employment laws when employees are called away from their jobs, CCH offers the reminders below and notes that now is the time for companies to review their military leave and reemployment rights policies.
For additional information, or to speak to a CCH employment law analyst on these issues, contact Leslie Bonacum, 847-267-7153 or email@example.com.
- Federal military leave law. All civilian employers, whether private or public and regardless of size, are covered by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA provides for military leaves of absence and reemployment of eligible employees when they return from military leave.
- State military leave laws. All states, including the District of Columbia and Puerto Rico, have laws regulating military leave. While most states have passed laws establishing reemployment rights as well as for those serving in the military, USERRA supersedes state laws that limit or condition its rights or benefits; however, it does not displace state laws that provide greater rights.
- Eligibility for leave. Absences to perform any duty (whether voluntary or involuntary) in a "uniformed service" are covered by USERRA, including active duty as well as absences for training, weekend drills, summer camp and fitness-for-duty examinations.
- Notice requirements. Employees are eligible to take military leave if they, or an appropriate military officer, gives advance written or oral notice to the employer of the employee’s military service. USERRA does not set a specific time for giving advance notice, but employees should make every effort to provide reasonable notice, depending on individual circumstances. No notice is required if doing so is impossible or unreasonable because of military necessity or other legitimate reasons. Written proof of the need to take military leave cannot be required to grant leave.
Leave can only be denied if the combined length of an employee’s prior military leaves is more than five years. Even if an employer thinks the timing, duration, frequency or nature of the employee’s military service is unreasonable, it cannot deny the employee leave from work.
- Pay during leave. USERRA does not require pay during military leave. However, companies may voluntarily pay reservists the difference between their regular wage and the military pay received during annual summer training. Some state laws may have additional pay requirements for employees during military duty. Regulations under the Fair Labor Standards Act prohibit salary deductions for absences caused by temporary military leave. However, the regulations permit employers to offset any military pay received by an employee for a particular week against the salary due for that week.
- Vacation. Federal law gives employees on military leave the right to use any vacation or similar leave with pay that they accrued prior to military service. But, use of accrued vacation time is at the employees’ option; employers cannot require the use of vacation time while on military leave.
- Benefit entitlement. Employees on military leave are entitled to participate in any rights and benefits not based on seniority that are available to employees having similar seniority, status or pay who are on nonmilitary leaves of absence. Such rights and benefits might include year-end bonuses, insurance, accrual of sick or vacation days or any other benefit not based on length of employment that is available to other employees on leaves of absence.
- COBRA Rights. If health insurance is not voluntarily maintained by an employer when the employee is called to active duty, the employee, spouse and any dependents must be given the option to elect 18 months of COBRA health continuation coverage. The standard COBRA notice must be given in this instance. COBRA health coverage for the employee, spouse and dependents cannot be cut off by the employer merely because activated military personnel receive health coverage as members of the armed forces.
- Qualified pension benefits. Under USERRA, veterans returning to employment from military service are entitled to the restoration of pension and profit-sharing benefits that would have accrued but for the employee’s military service. The reemployed veteran’s military service is also considered service with the employer for purposes of benefit accrual for vesting purposes.
Qualified retirement plans, including 401(k) plans, may allow veterans returning to employment from military service to make up employee contributions and elective deferrals that were not made during the employee’s period of military service without risking disqualification of the plan for violating the limits on contributions and benefits applicable to qualified plans.
Qualified plans also may allow employers to make matching contributions at the rate that would have applied had the employee’s employment not been interrupted by military service.
- Replacements. Employers are free to fill vacancies left by employees on military leave. However, a returning service member is entitled to the reemployment position required by USERRA regardless of whether another person occupies it. The returnee must be placed in the required position, even if this results in "bumping" the current employee.
- Reemployment. Employees who have taken military leave generally have the right to return to their civilian job without loss of seniority or benefits. The law regarding reemployment rights is lengthy and complex, however.
About CCH INCORPORATED
CCH INCORPORATED, Riverwoods, Ill., is a leading provider of employment law information for human resources professionals. CCH also provides tax and business law information in print and electronic form for tax, legal, securities, human resources, healthcare and small business markets. CCH is a wholly owned subsidiary of Wolters Kluwer U.S. The CCH website can be accessed at www.cch.com.
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