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Saluting Male Army

What is Military Leave and What Are My Rights?

Posted on March 30, 2018 in Employment Law

Everyone is entitled to time off; it doesn’t matter what job you’re doing, you are legally allowed time away from the workplace. For military members who might be stationed overseas for long periods of time, this might seem like a special circumstance, especially since most people understand that as military members. Their time is not their own until they’re released from their service.

For those who work normal jobs in San Diego, but only serve sporadically, telling your job that you’re going to be leaving for an extended period seems like a great way not to have a job when you get back. Under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 you are allowed leave due to active military services without losing your job. It is a federal standard rather than an employer-based one and is separate from personal leave.

Who Does USERRA Apply To?

For the purpose of the law, “uniformed services” is defined as any of the 5 main branches of the military, their reserve units, the national guard units, the Commissioned Corps of the Public Health Service, and any other category that may be designated in a time of war. The term “service” applies to active duty, active duty for training, guard duty, military examinations, military funeral honors, military academy, or activation due to national disaster or training for such.

As an employer in San Diego, there is no minimum number of employees that a company must have to follow USERRA, unlike many employment laws, there are no exceptions for government employment either. An “employer” is defined as any person, organization, or institution that pays workers or controls employment opportunities. This means that it will also apply to foreign companies who employ US workers whether they are on US soil or abroad, and to all state and federal employers.

What Rights Are Covered By USERRA?

The act covers any who serve their country as well as protection for disabled veterans, which means employers must make reasonable efforts to accommodate such disabilities. The law covers protections for health insurance, reemployment rights upon the person’s return, and the right not to be retaliated against for taking absence for active service by a company. The length of time that an individual may be excused and provisions against discrimination upon hiring are also covered.

There are four basic entitlements under USERRA

  • Prompt reinstatement at your job
  • Accrued seniority upon return
  • Retraining if required
  • Protection against being discharged for a further 180 days to re-acclimatize

In addition, a person who is covered under USERRA cannot be discriminated against for initial hiring purposes or promotion, or any other employment benefit because of the potential for necessitated military leave. This is covered under section 4311A-C of the act.

How Do You Get Your Job Back?

Under USERRA, your San Diego employer isn’t required to hold the job open while you’re gone, but they are required to let you have it back when you return. This prevents the company from having any hardship during your absence.

While you are gone you are given the same seniority as if you had continued to be employed, e.g., if after 6 months you should have expected a raise but were on leave, you will return with the raise because your seniority would still apply. The employer is required to make reasonable efforts to upgrade your skills or refresh training needed for your continued employment unless it is an undue hardship.

The criteria to be eligible is that this job must be civilian in nature, and the San Diego employer must be given either verbal or written notice prior to leaving. While this is usually common sense, it’s also a good way of making sure your employer knows the facts and what they should be doing as well.

There is also a 5-year cumulative leave limit, but there are some exceptions within that. If you are injured during service, this is extended up to 2 additional years or if your enlistment time is longer than a 5-year minimum. The employee is also only eligible if they are not dishonorably discharged and they must submit their application to the employer for rehiring in a timely fashion upon the end of their service. When you are released from service, simply notify your employer, and discuss the terms for your rehiring.

There are situations where you can still be denied reinstatement even if you’re covered under USERRA. This includes a change in circumstances for the employer which would make reemployment impossible (for example, if the company has downsized and that job no longer exists, or if they have closed).

They are also not required to reemploy service members if doing so would cause undue hardship or if that employment was only considered a brief or temporary position which would not have continued indefinitely. The employer would also not be required to reemploy you if you were dishonorably discharged or if you did not give correct notice prior to leaving.

What About Employee Benefits?

If your family is covered under a plan that is connected with the employer or through a group plan, you can choose to continue the coverage for either 24 months, or until 1 day after you choose not to reapply for that job. If you choose to continue your benefits you are still required to pay the costs of the coverage, but the amount varies depending on your service length and plan coverage.

If you lose your benefits because of your service (for example, because of financial hardship) then you are not required to have any waiting period for reinstatement upon your return; this also applies to any dependents.

As with any legal situation, it can be difficult to determine your rights, especially when San Diego employers themselves may not be familiar with military leave situations. If you’ve just come home and you were expecting to go back into your old job or you’ve been activated and are heading out, then USERRA applies to you.

To make sure you and your employer know your rights, contacting an experienced employment attorney like Walker Law can help smooth the process over and explain the law to you.

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