Military Leave

US military personnel, including reservists and members of the National Guard, are often called for tours of duty or periods of training during which they must leave their civilian jobs. This raises issues of re-employment and continuation of medical coverage and other employment benefits. An attorney with experience in employment law at our firm can advise you about your employment rights as a member of the armed services.

The federal Uniform Services Employment and Reemployment Act (USERRA) creates re-employment and continuing-benefit rights for military personnel. USERRA applies to private employers and to state and local government employers. With some variation, employees of the federal government are also protected.

You can lose your USERRA rights if your military service was under less than honorable conditions.

Re-employment

With a few exceptions, military service members are guaranteed re-employment in their civilian jobs after returning from active duty or training. In certain situations, such as the elimination of your job or difficult employer circumstances, you may be placed in a different but comparable job with similar salary and benefits.

Service members must give appropriate notices of military deployment to their employers and must reapply for their jobs within specific time frames. If an employee incurs or aggravates a disability during a military leave, USERRA has detailed employer requirements for disability accommodation and retraining.

Other major provisions:

• You have the right to use accrued vacation during your military leave, but you cannot be forced to do so.
• With some exceptions, you can be deployed up to five years before you lose your right to re-employment.
• If you were deployed 181 days or more, your employer cannot fire you after re-employment for at least one year without appropriate cause.
• A long military absence can cause a loss of job skills and you may be entitled to additional training.

Medical Insurance and Other Benefits

Under USERRA, if military leave would result in the termination of an employee's health coverage, the employer must allow the employee to continue coverage at his or her own cost, usually for up to 24 months. This normally includes not only medical coverage, but also vision, dental and prescription coverage and certain other flexible payment and reimbursement arrangements. With some exception, similar rights to continued coverage during military leave are preserved by the Consolidated Omnibus Budget Reconciliation Act (COBRA).

Upon your return, you have the right to medical coverage from your employer as before deployment, without waiting periods or pre-existing condition exclusions. However, your employer is not required to cover medical injury or illness sustained in active duty.

Pension rights and vacation should continue to accrue during military-service leaves. Similarly your vesting and accrual rights under certain retirement plans should not be interrupted. Military leave should count toward time worked for purposes of your right to family and medical leave.

Conclusion

In general, these are your rights under federal law. You may have additional benefits under your particular state's laws or your employer may offer more generous terms.

If you are a service member facing re-employment problems or issues with your employee benefits after a period of active duty, you may have legal remedies under federal or state law. An employee benefits lawyer at our firm can advise you about your rights under the law.

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