Clyde Snow

Covid-19 and USERRA – Employer and Employee Rights and Responsibilities

by | Mar 30, 2020

On Friday, March 27, 2020, President Trump issued an Executive Order (the “Order”) requiring the Secretary of Defense to begin the process of recalling members of the Armed Forces Reserve and Ready Reserve components. If you have employees who serve in the reserve component of any branch of the armed forces, this Order may trigger obligations under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). USERRA prohibits discrimination against servicemembers and imposes several employment related obligations on employers when activated or deployed servicemembers return to their civilian jobs. These restrictions may apply to those activated under the Order, or those returning from periods of service that began before the Order was issued.

USERRA applies to all employers, both public and private, regardless of the number of employees. Covered employees under USERRA include members of the armed forces, including the Army and Army Reserve, Navy and Naval Reserve, Air Force and Air Force Reserve, Marine Corp and Marine Corp Reserve, and the Coast Guard and Coast Guard Reserve. Members of the National Guard and Air National Guard may also be covered when the member is engaged in active duty for training, inactive duty training, or full time National Guard duty based upon activation under Title 32, Title 10 and Title 14 of the U.S. Code. USERRA also protects members of the Commissioned Corps of the Public Health Service and any other category of individuals designated by the President in a time of war or national emergency.

Generally, to be entitled to USERRA protections, an employee who falls into one of the categories above must give advanced notice of her intent to take military leave. Leave may be given by the employee or another officer authorized to provide the notice, and can be written, oral, or informal. Notice requirements are less stringent however, when notice cannot be given out of military necessity, or if it is impossible or unreasonable to do so either because the employer is unavailable, or because there is an extremely short period of time between the servicemember’s receipt of activation orders and her reporting date.

Subject to several exceptions, employees covered by USERRA must also have fewer than five years of cumulative uniformed military service while with that employer; must return to work or apply for reemployment within a timely manner after the conclusion of their service; and must not have been separated from service with a disqualifying discharge or under conditions other than honorable. Importantly, USERRA applies whether employees are ordered to service or volunteer for service. No employer permission or approval prior to military service is required, and no documentation of the absence is required unless the period of service exceeds 30 days and the employee seeks reemployment.

Upon returning to work, USERRA eligible employees who have been absent from the workplace as the result of military service for ninety (90) days or fewer must be reemployed in the same position they would have had, with the same benefits they would have had if the employee had never been absent from employment due to military service. This is true “even if reemployment might require the termination of [a] replacement employee.” If the period of service exceeds ninety (90) days and same position is not available, the “escalator principle” requires that the returning veteran be placed in a position similar to the position she would have had should she have never taken leave. This requires that the servicemember be reemployed in a position that reflects “with reasonable certainty the pay, benefits, seniority, and other job prerequisites that he or she would have attained if not for the period of service.” Additionally, a reemployed service member may not be terminated without cause for 180 days after reemployment if the period of service was between 31 and 180 days, or for one year if the period of service lasts for 181 days or longer.

In addition to reemployment, certain employees recalled, activated or volunteering for military service are entitled to benefits and compensation under USERRA. While paid leave is not required, many employers pay the difference between military compensation and civilian pay, and employers must permit the use of accrued leave or vacation during times of military leave. All rights and benefits available to employees on non-military leaves of absence, whether paid or unpaid that are not based upon seniority must be available to servicemembers. Other benefits implicated by military leave may include status under the FLSA, employee benefit plans, among others.

Employers may be exempted from their USERRA obligations despite a servicemember’s qualification if it can establish one of several statutory affirmative defenses, including

  • a change in circumstances so great that reemployment of the servicemember has become impossible or unreasonable;
  • undue hardship resulting from the employer’s need to train or retrain a service member to make her qualified for reemployment;
  • a period of brief employment such that there is no reasonable expectation the employee would continue indefinitely or for a significant period of time.

Each employer’s requirements under USERRA varies depending upon a number of factors, including factors here that will be determined as the situation with COVID-19 continues to progress. For example, employers may have obligations to employees currently on military leave, or to those who are activated or volunteer to assist with the U.S. response to the disease. Moreover, these obligations may change depending upon an organization’s receipt of government stimulus money, an organization’s need to enact a reduction in force or other temporary layoff, or other change in circumstance. USERRA presents yet another complicated employment law issue that Human Resources and managers should fully understand when dealing with activated, recalled, or voluntary members of the armed forces. Activation for service or volunteer service due to coronavirus is now a reality and compliance with the complexities of USERRA in these uncertain times may require the advice of counsel.

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