September 19, 2001

In the days to come, many employers will be faced with questions concerning obligations to their employees who are called for military service. To aid in this process, we offer this general summary of the provisions of the Uniformed Services Employment and Reemployment Act (USERRA). 

1. Coverage. All employers are covered, and all types of voluntary and involuntary military service are covered, including active duty, active and inactive training duty, National Guard duty and fitness for duty examinations. All employees are covered by the nondiscrimination provisions. There is, however, a narrow exception to the reinstatement provisions: If an employee has left from a temporary job (employment that is for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period), the employee is not entitled to reinstatement.

2. Nondiscrimination. Employers may not discriminate in employment, reemployment, promotions or benefits against employees who apply for or perform military service or who have military service obligations.

3. Leave. Employers must give employees a leave of absence for military service, up to a total of five years or longer in the case of war, national emergency or critical mission. The employee must give the employer written or oral notice of the need for the leave

4. Benefits While On Leave. An employee on military leave is entitled to all the benefits provided generally to employees on leave. The employee may elect to use accrued vacation during the military leave. During the leave, the employee has the right to continue to be covered by employer-provided health insurance for up to 18 months at the employee's expense. (For leaves lasting up to 31 days, the employer must continue to pay its usual share of the premium.) No coverage exclusion or waiting period may be imposed on a reinstated employee or a covered dependent because of the employee's absence for military service. 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. 

5. Reinstatement. Employers must reinstate qualified returning veterans who have not been dishonorably discharged if the employee gave the employer notice of the need for the leave and the employee makes a timely request for reinstatement. 

6. Time to Request Reinstatement. The allowable time for requesting reinstatement varies depending on the length of the leave: For service lasting less than 31 days, the employee must report for work on the next scheduled workday following return from service; for service lasting between 31 and 180 days, the employee must submit an application for reinstatement within 14 days after completion of service; for service longer than 180 days, the employee must submit an application within 90 days of completion of service. These time limits can be extended up to two years if an employee is recovering from a service-incurred or service- aggravated illness or injury. Note: These time limits do not automatically cut off reemployment rights. Employers must still look to their general leave policies and practices to make sure they do not discriminate against returning veterans. 

7. Reemployment Positions. For leaves lasting 90 days or less, the employee must be returned to the job he or she would have had if the employee had been continuously employed during the military leave, as long as the employee is qualified to perform that job. This is known as an "escalator" principle. For leaves lasting longer than 90 days, the employee must be reinstated to a job with like seniority status and pay to the job prior to leave, so long as he or she is qualified to perform that job. "Qualified" means "having the ability to perform the essential tasks of the position." Before finding a returning employee "unqualified", the employer would have to prove that reasonable efforts have been taken to help the person become qualified.

8. Exceptions to Reinstatement. The employer need not reinstate a returning employee if the employer's circumstances have so changed that reemployment is "impossible or unreasonable" or if the employee has a service-connected or service-aggravated disability that cannot be reasonably accommodated and that would make reemployment an "undue hardship." However, these exceptions are very limited and the employer would have a heavy burden to prove them. Reinstatement cannot be denied simply because the employee has been replaced during the leave.

9. Job Security. An employer cannot discharge a reinstated veteran except "for cause" for a period of time following reemployment: The "kings x" period is 180 days for service lasting from 31 to 180 days and one year for service lasting more than 180 days.

State law provides similar, but less specific protections to employees called to service within the state militia or Oregon National Guard. See ORS 399.230. For example, there is no specific exception for employees working on a temporary job.

If you have any questions regarding this issue, call or email us. Feel free to share this advisory with others. If you would like to be on our e-mail distribution list, please visit our Email Advisory web page and click on the "Subscribe" button.

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