UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994
The basics of the law are:
- Coverage: Virtually all employers, regardless of the number of employees.
- Eligibility: Virtually all employees who perform “service in the uniformed services”
- “Uniformed services” means Army, Navy, Air Force, Marines, Coast Guard, reserves of those branches, Army and Air National Guard, and others designated by the president in a time of war or national emergency.
- “Service in the uniformed services” means:
- Active duty,
- Active duty for training,
- Inactive duty training (such as drills),
- Initial active duty training,
- Funeral honors duty performed by the National Guard and reserve members, and
- Fitness for duty examinations.
- Employee protections include:
- Reinstatement rights;
- Prompt reemployment;
- Retraining, if necessary, for example, to regain an expired license or to be trained on upgrades in systems (the burden is on the employer to provide this);
- Reasonable accommodations for injuries/aggravations;
- Seniority/benefit accrual while on leave;
- Protection from discrimination based on military service; and
- Employers required to show “cause” for terminations occurring up to a year after return from service, depending on the length of leave. (Employment at will is “out the window,” but you can still terminate for cause.)
- Employer protections include:
- The notice required unless “impossible, unreasonable, or precluded by military necessity.”
- Five- (5) year cumulative limit on protected leave; however, a number of exceptions apply.
- Undue hardship defense to reinstatement (but this is a fairly tough standard—tighter than Title VII or the Americans with Disabilities Act).
- Reinstatement not required where prior employment was for a brief, nonrecurrent period.
- Right to documentation for leave of 30-plus days.
- Notice Requirements:
- Employer to post “Your Rights Under USERRA.”
- Employee strongly suggested to give 30 days’ notice prior to leaving but not specifically required (no notice if impossible or by military necessity).
- Employee to notify of intent to return
- Up to 30 days of service: within 8 hours;
- 31 to 180 days: within 14 days;
- 181+ days: up to 90 days after service; or
- Extended up to 2 years for servicemembers who are hospitalized or convalescing.
- Reinstatement Rights:
- Return to the position that would have been achieved if the employee had not gone on leave (“the “escalator” position);
- If the escalator position is not available, return to the same position or similar position as previously held, depending on the length of leave involved;
- Retraining required if necessary; or
- Reasonable accommodations required for employees injured or with aggravated prior conditions resulting from military service.
https://www.justice.gov/crt-military/uniformed-services-employment-and-reemployment-rights-act-1994