USERRA: 10 Questions to Help Manage Employees with Military Service

Nearly 2,000 Iowa National Guard service members are preparing to deploy overseas within the next few months. Employers of these Guardsmen and women play a crucial role in supporting our country’s national defense and their families. However, they need to understand their obligations to their employees covered under the Uniformed Services Employment and Reemployment Rights Act (USERRA). They also need to know how the Family Medical Leave Act may come into play for their employees who do not serve in the military but might have a loved one on the deployment. Nyemaster Goode attorneys Kristina Stanger, Tom Cunningham, and Brian Shust addressed employers’ military leave obligations in our April client webinar. Here are the highlights:

 

What Is USERRA?

USERRA, 38 U.S.C. §§ 4301–4335, covers uniformed members of all U.S. military services, including the Iowa National Guard. Also, sections of the Iowa Code and U.S. Department of Labor (DOL) regulations address employer obligations to service members. The Dole Act, effective January 2, 2025, expands military service member rights.

 

USERRA:

• Provides military leaves of absence to employees serving in the military.
• Covers the lengths of leave and required notice to employers.
• Addresses the employer’s reinstatement obligations.
• Offers protections against discrimination and discharge.

 

USERRA addresses duty status categories, including:

• active-duty military,
• National Guard members serving under federal authority,
• National Guard members serving State Active Duty (SAD) performed under the governor’s authority.

 

The Dole Act expands USERRA rights and increases damages for violations.

• Employers are liable for all acts of retaliation, including “proposed” adverse actions.
• A service member can seek injunction relief by meeting a four-part test that is less demanding than the “irreparable harm” test for injunctive relief previously applicable and that is still applicable in non-USERRA contexts.
• Awards of attorney fees are mandatory if the service member prevails against an employer in any forum.
• Minimum damages against employers who knowingly violate USERRA provisions are $50,000, even when no lost wages or benefits are recovered.
• Courts may require employers to pay interest of 3 percent per year.

 

Who Is Covered by USERRA?

All paid employees absent from work due to “service in the uniformed services” are included. This means all Armed Forces, plus Reserves, National Guard, and any other category of persons designated by the president.

 

Service in the uniformed services is defined as:

• active duty
• training, including initial training
• inactive duty training
• full-time Guard duty
• fitness for duty examinations

 

For these activities, USERRA requires employers to reinstate the employee when they return from duty. In a very limited exception, employers are not required to reinstate an employee if employment prior to service was for a brief, non-recurrent period with no reasonable expectation that it would continue for any reasonable period (although this is a very limited exception).

 

According to the DOL, there is no difference between a voluntary and involuntary order. If an employee chooses to deploy or takes annual tour days at a certain time, USERRA rights apply—even if it’s inconvenient for the workplace. An employer cannot require the employee to adjust their uniformed service nor can they take action against the employee.

 

There is no statute of limitations for USERRA rights. Members can assert them at any time if they feel their employment rights were infringed.

 

All employees and applicants are initially protected by USERRA, including workers in part-time, temporary, probationary, full-time, or seasonal positions.

 

What Employers Are Covered by USERRA?

All public and private sector employers are included under USERRA, regardless of size or employee census.

 

Successor employers are also required to reinstate an employee returning from military leave when there is “substantial continuity” of operations. If a business is acquired by another organization during an employee’s deployment, the new organization must reinstate the service member. This requirement applies if current operations are substantially similar to the previous operations. 

 

How Long Can an Employee Be on USERRA Leave?

To accommodate multiple deployments or duty orders, leave may be periodic. Generally, the cumulative length of an employee’s leave of absence may not exceed five years. Leave accumulates over the course of the employee’s employment.

 

Certain types of leave cannot be counted against the five-year cumulative limit. If an employee is nearing the five-year limit, discuss with your labor and employment attorney which periods of leave can and cannot be counted.

 

An employer may not refuse leave because it believes the length, timing, or frequency of military obligations are unreasonable. The employee and employer may work cooperatively to accommodate each other’s needs.

 

While a service member is on leave, the employer cannot terminate or permanently replace the employee. The employer may hire a temporary employee to perform the function or consider a temporary redistribution of workloads.

 

What Is the Employee’s Obligation to Inform the Employer?

Employees must provide advance notice of scheduled drills, deployment, or other service orally or in writing. Employers may request copies of orders and contact the officer issuing orders to confirm their validity.

 

Notice may be directed to anyone at the company who may receive employment applications. This is often a human resources officer or first-line supervisor. A drill schedule sheet, orders, or a simple email meets this mandate. An employer cannot make an employee reschedule drill or annual training days.

 

 Notice is not required when:

• Military necessity prevents the giving of notice.
• The giving of notice is otherwise impossible or unreasonable.

 

How Does USERRA Address Compensation and Benefits?

USERRA leave is unpaid, but the employee may elect to use accrued paid time off. An employer may not require the use of PTO.

 

As a general rule, the service member is entitled to the same benefits the employer provides to employees on other types of leave.

 

Vacation accrual and seniority rights follow an employee while they are on military leave. When they return, they are entitled to the same pay and seniority status they would have attained with reasonable certainty had no military leave been taken.

 

Employers have the discretion to  offer differential pay to compensate for employees who take a pay cut during military service. This may result in better employee retention.

 

It’s best to consult your legal counsel when considering pension matters related to military leave.

 

What Are Common USERRA Issues in Iowa?

Two USERRA issues often arise between employers and their service-member employees:

• Drill scheduling
• Discrimination

 

As noted, employees must provide advance notice when possible.

 

For scheduled drills, employers must schedule employees to allow at least 8 hours rest plus travel time before they report for drill and before they report back to work. For example, for an 0800 drill report time with 30 minutes of travel, an employee’s civilian shift cannot go past 2330 hours the night before.

 

The DOL estimates 62 percent of USERRA complaints contain allegations of discrimination on the basis of past, present, or future military service or status.

 

Employers cannot take adverse employment action against a service member even partially motivated by past, present, or future military service.

 

Typically, a service-member employee will use circumstantial evidence to infer a discriminatory motive. A court will review:

• the time between an employer’s adverse action and a return from service.
• expressed hostility (e.g., stray comments even in hiring).
• disparate treatment compared to other employees (e.g., scheduling).

 

If employee demonstrates service is the motivating factor in an adverse decision, the burden shifts to the employer to prove they would have taken the same action regardless.

 

How Does FMLA Apply to Military Service?

Family members of these deploying members also have important protections. The 2010 amendments to the Family and Medical Leave Act (FMLA) provide two kinds of job-protected leave.

• Qualifying exigency
• Military caregiver

 

Qualifying exigency pertains to leave arising out of the fact that the employee’s spouse, child, or parent is a member of the Armed Forces (including Reserves and National Guard) on covered active duty in a foreign country or has been notified of an impending call or order to active duty.

 

A qualified military exigency provides up to 12 weeks of job-protected leave, consecutive or intermittent. These types of events typically qualify for exigency leave:

• Short-notice deployment.
• Military events, ceremonies, and related activities.
• Certain temporary or alternative child care arrangements and school activities.
• Making or updating financial and legal arrangements due to service member’s absence as a result of a call to active duty status.
• Counseling by a non-medical counselor arising from active duty.
• Rest and recuperation (up to 15 days when a military member is on short-term leave)
• Parental care leave for a military member’s parent incapable of self-care.
• Post-deployment military activities.

 

Military caregiver leave provides job-protected leave to an eligible employee who is a spouse, child, parent, or next of kin to care for a service member or veteran who is undergoing in-patient or out-patient medical treatment, recuperation, or therapy or is on the temporary disability retired list for a serious illness or injury arising out of or aggravated by the service member’s or veteran’s active duty. It is not limited to recent events. It applies to veterans with injuries incurred even decades ago.

 

Military caregiver leave provides up to 26 weeks of job-protected leave in a single 12-month period. The period begins on the first day the employee takes leave to care for the service member and ends 12 months after that date. This “looking forward” method for determining the 12-month FMLA period  is required for military caregiver leave, regardless of the method used by the employer to determine an employee’s leave for other types of FMLA leave.

 

What Are the Reinstatement Rules?

Timing for returning to work is generally based on the length of leave.

• For military service of less than 31 days, employees should report for reemployment at the beginning of the first regularly scheduled workday that falls 8 hours after the return from service.
• For military service between 31 days and 180 days, an application to return to work must be submitted no later than 14 days after completion of service.
• For military service of more than 180 days, an application to return to work must be submitted no later than 90 days after completion of service.
• Hospitalization or convalescence may extend these deadlines.

 

To be eligible for employment reinstatement, employees have specific obligations.

• An employee’s military service must be completed under honorable conditions. A dishonorable or bad conduct discharge or court martial discharge makes an employee ineligible for USERRA protections.
• If requested by the employer, an employee on leave for longer than 31 days must produce documentation establishing the timeliness of the request for reinstatement.
• If the military leave is 91 days or more, an employer may delay making retroactive pension contributions until the employee submits satisfactory documentation.

 

Employers also have obligations when reinstating an employee.

• The employer must reinstate the employee to the position they would have attained but for the leave. It need not be the same job.
• If the employee is not qualified for the position, the employer must train them to be qualified as soon as possible. For example, a position might require continuing education credits or qualification on a particular machine.
• If an employee is reinstated to the same position, the employer is obligated to provide refresher training.
• If an employee returns to work with a service-related disability, the employer must make reasonable accommodations for the performance of the position he would have attained. If the employer is not able to provide a reasonable accommodation, the employee must be re-employed in a position of equivalent seniority, status, and pay.

 

To meet these obligations, employers follow an “escalator” rule. If the employee would have been promoted with reasonable certainty had the person not been absent, the employee would be entitled to that promotion upon reinstatement. On the other hand, depending on economic circumstances, reorganizations, reductions in force, or other layoffs, the position could be at a lower level. It could be a different job, or the employee could conceivably be in layoff status. The escalator can move up or down.

 

What Are USERRA Best Practices for Employers?

The Department of Labor (DOL) and Employer Support of the Guard and Reserve (ESGR) offer valuable resources to help employers comply with USERRA and support their service-member employees. For employers, a good first step is to download the USERRA rights poster from the DOL. Then, review these elements and contact your legal counsel to discuss how you can support this mission.

 

Military Leave Policy: Include military leave in the employee handbook. The policy should at a minimum expressly cover:

• availability of leave.
• procedures for notifying the employer about military leave.
• pay and benefits issues.
• reinstatement procedures.

 

FMLA Policy: Review and update the FMLA policy, especially in regard to calculating the 12-month cycle for military caregiver leave.

 

Benefits Help: Create a contact within the HR or benefits administration for the service member’s family. The contact should be available for health insurance questions or to address other issues while the employee is on leave.

 

Service Member and Family Support: Consider specific offers of help to the deployed employee and their family. The offers might take the form of meals, care packages, grass mowing, holiday lights hanging, “kiddo breaks,” or other suitable efforts. Host celebrations on leaving and returning. Create a culture that celebrates military service.

 

Your Nyemaster labor and employment attorney can advise you on ways to handle the specifics of USERRA’s provisions—allowing you to be a proud employer of military service members and an asset to our country’s national security.