Military Leave: Employers' Obligations

In light of our country's anti-terrorist military efforts in Afghanistan and elsewhere, and the large number of citizens who are being called up or are signing up to serve in the armed services, it is important that employers be familiar with their obligations with respect to military leave. Under the federal Uniformed Services Employment and Reemployment Rights Act ("USERRA"), which applies to all employers, regardless of size, employers are prohibited from discriminating against employees in hiring, retention, promotion or employment benefits based on past, present or future membership in, or application for membership in, any branch of the armed services (or other "uniformed services").

USERRA provides job and benefit protection for members of the uniformed services, and permits employees to take up to five years of leave for military service. Under USERRA, employees who return to work after a military leave must be reemployed in their same or a similar job with the seniority, status, pay and benefits that they would have attained if they had remained continuously employed. An employer may be relieved of the obligation to reemploy a person who has been on military leave if the employer's circumstances have so changed as to make such reemployment impossible or unreasonable, or if such reemployment would impose an undue hardship on the employer.

When an employee returns from a military leave, the employer is obligated to place the employee in the position that he or she would have attained if the person had remained continuously employed, so long as the employee is qualified for the position or can become qualified after reasonable efforts. If not, then the person must be reemployed is the same position he or she left prior to the military leave, or in a position that is the nearest approximation of that position. If the military leave lasted more than 90 days, then the employer has the option of putting the employee in a position of equivalent seniority, status and pay.

An employee is required to provide the employer with advance notice of his or her service obligations in order to be entitled to the benefits and protections provided by USERRA. However, the notice obligation is waived if military necessity precludes providing it, or if giving such notice would be impossible or unreasonable. Moreover, upon completing military service, an employee is required to notify the employer of his or her intent to return to work. The time period for such notification varies depending on the length of the employee's military service.

Under USERRA, employers are not obligated to compensate employees during the period of military leave. However, employees on military leave are entitled to the same benefits that are provided to employees who take other forms of leave. A person who is on military leave is entitled to elect to continue coverage for himself or herself, and for the person's dependents, under the company's health plan up to a maximum of 18 months. This is true regardless of whether the company is otherwise subject to COBRA.

Utah state law is stricter than USERRA. Utah's statute (§ 39-1-36) requires mandatory leaves of absence up to five years for any duty or training "pursuant to military orders." Utah's statute also requires that upon "satisfactory release" from duty or from hospitalization incidental to the duty, the individual "shall be returned to the prior employment with the seniority, status, pay and vacation the person would have had as an employee if he had not been absent for military purposes." This language requires mandatory reinstatement to the employee's prior position (there is no language here about an equivalent position); and also requires full credit for the military duty time for all issues regarding seniority, benefits, and retirement. This language also seems to imply that the returning employee might be entitled to promotions if he or she could show they would have been promoted had they been at work rather than on military duty.

Finally, the Utah statute makes it a misdemeanor criminal offense to willfully deny any of the statute's benefits.