AASCIF - july-august-september

Pam West, CCP, PHR
Compensation and Benefits Manager
Louisiana Workers' Compensation Corporation

Many of us have employees deployed on active military service. Under the U.S. Uniformed Services Employment and Reemployment Rights Act of 1994, we must be prepared to address those employees’ rights upon their return from active duty.

In addition to compensation and benefits issues involving employees called to active duty, companies must provide reemployment opportunities to employees returning from service. USERRA clearly states that an employee returning from active service not only return to the same position with the employer but also be reinstated into the workforce as though they never left. In other words, an employee is entitled to the rights and benefits they would have earned if they had remained continuously employed.

USERRA provides reemployment rights for veterans and members of the Army, Navy, Air Force, Marines, Coast Guard, and Public Health Service commissioned corps and each of their reserve components following qualifying military service. It specifically prohibits employer discrimination against any person on the basis of that person’s past military service, current military obligations or intent to join one of the uniformed services.

This law covers all private and public sector employers regardless of size, including state, local and federal governments. USERRA is administered by the U.S. Department of Labor through the Employee Benefits Security Administration.

Under USERRA, an employee is entitled to reemployment if:

• The employee has given the employer advanced written or oral notice of military service (unless notice is otherwise impracticable or impossible).

• The cumulative length of the absence and all previous absences from employment for military service, with certain exceptions, does not exceed five years.

• The employee is honorably discharged from military service. And,

• The employee reports to or submits an application for reemployment in accordance with certain requirements.

Depending on the amount of time served, an employee must return to work within a particular time frame. If the employee served:

• 30 days or less, then the employee must report to work on the first regularly scheduled workday that would fall at least eight hours after completion of military service.

• 31 days up to 180 days, then the employee must apply for reemployment within 14 days after completion of service.

• More than 180 days, then the employee must apply for reemployment within 90 days after completion of service.

Extensions may be granted if the employee is hospitalized or recuperating because of a disability incurred or aggravated during military service. An employee does not automatically forfeit reemployment rights if they fail to apply for reemployment within the time frames allowed. However, the employer may subject the employee to company policies governing unexcused absences from work.

Impact on health plans
USERRA requires employers to allow employees, including dependents, called to active duty to return to the employer’s group health plan with no waiting period or penalty for pre-existing conditions. But if an illness or injury is determined by the secretary of Veterans Affairs to have been incurred or aggravated during military service, that condition may be covered by the military health plan.

Impact on pension plans
USERRA provides that for purposes of calculating pension benefits, compensation during a period of military service is to be determined as though the leave had not occurred.

If an employee was contributing to a defined contribution plan such as a 401(k) Plan, the employee may be entitled to employer matching contributions missed while on active duty provided the employee makes up such contributions after returning to employment. Likewise, in a defined benefit plan, the employer generally would have to fund any accruals for a returning employee as though the employee had never taken a leave.

If an employee has an active loan from a qualified retirement plan, payments may be suspended during active duty. Upon return, the employee may increase payment amounts, pay a final balloon payment, or extend the payoff date by the length of active duty.

Periods of military service cannot be treated as a break in service and must be counted as service with the employer for purposes of vesting and benefit accruals.

Impact on Family and Medical Leave Act (FMLA)
An employee who is reemployed after active duty is entitled to FMLA leave if the number of hours the employee would have worked during the military service period plus the hours actually worked by the employee meet the minimum number of hours required during a 12-month period.

Impact on Americans with Disabilities Act (ADA)
If an employee incurred or aggravated a disability while performing military service, the employer has a greater burden under USERRA that goes beyond ADA requirements.

The employer must make reasonable efforts to accommodate the employee so they can perform in the previously held position. If the employee is still not able to perform due to disability, then the employer must place the employee in a position of equal seniority, status and pay, as long as the employee is qualified and capable of performing the duties of the new position with or without reasonable accommodations by the employer.

Generally, the protections afforded by USERRA are in addition to any protection afforded under other state or federal law. USERRA does not preempt state laws that provide for greater benefits. Therefore, employers should determine whether state mandates apply.

Pam West can be reached at pwest@lwcc.com or (225) 231-0508.

For more information, visit the U.S. Department of Labor’s Employee Benefits Security Administration website www.dol.gov/ebsa

Military personnel When returning to work, they're entitled to certain rights

Military personnel
When returning to work, they're entitled to certain rights