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Workplace Fairness Weekly

Workplace Fairness Weekly (5/25/20)

Topic of the Week  Military Leave

  • Are all individuals activated for military service eligible for reemployment under the law?
  • What happens to my benefits while I am on military leave?
  • Does USERRA require my employer to pay me during my leave?

Are all individuals activated for military service eligible for reemployment under the law?

Generally, the individual must meet five conditions, or "eligibility criteria," to be eligible for reemployment under USERRA. The individual:

  • must have been absent from a civilian job in order to perform military service (unless the employer can show the job was held for a brief, nonrecurrent period with no reasonable expectation of continuing for a significant period.)
  • must have given written or verbal notice to the civilian employer prior to leaving the job for military training or service (except when precluded by military necessity.)
  • must not have exceeded during the employment relationship with the civilian employer the 5-year cumulative limit on periods of service (with the exception of certain periods of service )
  • must have been released from service under conditions other than dishonorable.
  • must report back to the civilian job in a timely manner or submit a timely application for reemployment.

What happens to my benefits while I am on military leave?

If you and/or your dependents have coverage under a health plan in connection with your employment, including a group health plan, and you are absent from your employment due to military service, you may elect to continue such coverage for the lesser of the following two time periods: 

  • a period of 24 months, beginning on the date of your absence from work, or
  • until one day after the date on which you fail to apply for or return to a position of employment

If you elect to continue health-plan coverage, you may be required to pay the cost of the coverage (up to 102 percent of the full premium, similar to COBRA requirements) associated with coverage for the employer's other employees. If you served in the uniformed services for less than 31 days, you may not be required to pay more than the employee share, if any, for coverage.

If your coverage under a health plan was terminated because you served in the uniformed services (and were unable to pay the premiums to continue coverage), the plan may not impose an exclusion or waiting period when reinstating coverage upon reemployment, as long you would not have been subject to an exclusion or waiting period if your coverage had not been terminated due to military service. This applies to you upon reemployment and to any of your dependents covered by the plan once you are reinstated.

If and to the extent that your employer provides any other benefits (not relating to health care) to employees who have been furloughed (laid off) or to employees on some kind of non-military leave (jury leave, educational leave, etc.), the employer must provide similar benefits to employees who are away from work performing service in the uniformed services.

Does USERRA require my employer to pay me during my leave?

No. USERRA does not require an employer to pay you for time not worked due to service. Another Federal law (5 U.S.C. 6323) gives federal civilian employees the right to 120 hours (15 days) per fiscal year of paid military leave. About 40 states have similar laws for state and local government employees. Of course, your employer may voluntarily pay you or choose to supplement the difference between your military and civilian salary, but this is not legally required.

If an employee is exempt from the Fair Labor Standards Act (FLSA) overtime rules, the employer is not permitted to make a deduction for a part of a pay period missed because of temporary military leave. This is an FLSA requirement, not a USERRA requirement. 

Thought of the Week

"If you're dealing with other challenges that impact the veteran community disproportionately like mental health challenges, physical injuries and service, reintegrating back into society... being able to achieve employment at the level in the specific sector that one desires is something a little more challenging."

–Hannah Sinoway | Organization & Strategy Executive VP for the Iraq & Afghanistan Veterans of America

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Top Five News Headlines

    List of the Week

    from Bureau of Labor Statistics

    Veterans' unemployment during coronavirus

    • In April, the veteran unemployment rate jumped to 11.7%
    • More than one million veterans applied for jobless benefits in April alone.
    • There are 1.2 million veterans workers in the five industries most impacted by the pandemic, which includes travel, mining and oil and gas exploration, transportation and warehousing.


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