In response to the recent terrorist attack on America, Congress has approved the callup of as many as 50,000 military reservists and National Guard personnel for national defense purposes and to help in the disaster-relief effort. With large numbers of armed services personnel now reporting for duty, this tragic event raises important issues for employers. What are the obligations of employers and the accompanying remployment rights of reservists when they seek to return to work? Do reservists have a right to paid leaves of absence? Do they continue to accrue pension benefits under the company plan? The Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 3 8 U. S. C. §43 01 et seg., governs the reemployment rights of employees who leave work to perform military service and provides answers to these questions.

USERRA covers all employers and preempts applicable state law, unless the state law provides greater protection to the affected employee. Employee coverage is broad and extends to members of the uniformed services who are absent from employment for military service, whether voluntary or involuntary, including active duty, active duty for training, inactive duty training, full-time National Guard duty, undergoing fitness examinations for any of the foregoing, and participation in funeral honors duty. USERRA applies to all types of Uniformed services: the Army, Navy, Marine Corps, Air Force, Coast Guard, Army Reserve, Coast Guard Reserve, Army National Guard, Air National Guard, the Commissioned Corps of the Public Health Service, and any other category of person designated by the President in a time of war or emergency.

Under USERRA, an employee must provide advance written or verbal notice to an employer before leaving work to perform military duty, unless giving notice is impossible, unreasonable, or precluded by military necessity. A person who leaves work to perform military duty lasting no more than five years (longer if certain exceptions apply) has a right to restoration to employment if he or she makes a timely application for reemployment and presents, upon request, documentation establishing his or her entitlement to reemployment. The time limits for applying for reinstatement vary, depending on the length of military service. If the employee's absence lasts 30 days or less, he or she is not required to provide documentation, but normally must report back to work by the beginning of the first regularly scheduled work day that would fall eight hours after the employee returns home. For returning employees whose absence was more than 30 days but less than 181 days, an application for reemployment must normally be submitted no later than 14 days after the completion of their military service. For returning employees whose absence was more than 180 days, an application for reemployment must normally be submitted no later than 90 days after the completion of their military service. If the employee's absence lasts longer than 30 days, the returning employee must supply the employer with documents establishing that the application for reemployment is timely (for example, military discharge papers) and that the character of the individual's military service was satisfactory. However, if the returning employee is unable to provide the necessary documentation because it does not exist or because it is not readily available at the time of the application for reemployment, the employer must conditionally reemploy the individual. If the documentation subsequently becomes available and establishes that any eligibility requirement was not met, the employer may then terminate the individual's employment.

As a general rule, the returning employee is entitled to reemployment in the position he or she would have held had the person remained continuously employed: the "escalator position." However, if the returning employee is not qualified for the escalator position and cannot become qualified with reasonable efforts by the employer, the employee is entitled to the job that he or she left, or a position of equivalent seniority, status, and pay. If the employee is not qualified for that position for any reason other than service-related disability and cannot become qualified through reasonable efforts by the employer, the employee must be employed in any other position for which he or she is qualified and that most nearly approximates his or her former position. Reasonable efforts to render a returning veteran qualified for a position include providing training or retraining. An employer is also obligated to reasonably accommodate returning employees with service-related disabilities. However, an accommodation requiring significant expense, considered in light of the nature of the business or operation and overall financial impact on the business or operation, may be considered an undue hardship on the employer and remove this obligation.

Although employers are under a general duty to reemploy individuals returning from military service, an employer has no duty to reemploy a returning veteran when (1) there has been a change in the employer's circumstances that render reemployment unreasonable or impossible; (2) reemployment would impose an undue hardship on the employer; or (3) the employment from which the employee leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.

Employees who leave work to serve in the military must be deemed to be on furlough or leave of absence while they perform military service. While absent from work for military service, an individual is entitled to the rights and benefits accorded to other employees on furlough or leave of absence, but may waive those rights and benefits by providing a written notice of intent not to return to employment after military service. During his or her absence, an individual may use accrued vacation, annual, or other similarly paid leave, but it is unlawful for an employer to force the employee to use such paid leave. In addition, employees leaving employment for military service are entitled to elect continued health insurance coverage for up to 18 months after they leave work. If the military service does not exceed 30 days, the individual may not be required to pay more than the usual employee share of the premium for continued coverage. If the military service exceeds 30 days, the individual may be required to pay up to 102 percent of the full premium for continued coverage.

Upon reemployment after military service, a returning employee is entitled to the seniority and the rights and benefits the individual would have attained if he or she had remained continuously employed. Thus, any employment rights and benefits determined by seniority, including status, rate of pay, vacation, pension vesting, and credit for the period for pension benefit computations, must be based on the time spent on military leave as well as the time spent in active employment. In addition, the returning employee is entitled to reinstated health insurance without the imposition of an exclusion or waiting period. USERRA contains detailed provisions regarding veterans'participation in employee pension plans.

A returning employee whose period of military service exceeded 180 days may not be discharged without cause for a period of one year after returning to employment. If the period of military service was more than 30 days but less than 181 days, the reemployed individual is protected from discharge without cause for six months. No protection from discharge without cause applies to reemployed individuals whose period of military service was less than 31 days.

Protection Against Discrimination

Employers may not discriminate against an employee because of the employee's military status. They may not deny initial employment, reemployment, retention in employment, promotions, or any benefit of employment to an individual because of the individual's present or past application, membership, or service in the uniformed services. USERRA also prohibits retaliation against any individual because that individual has filed a claim under USERRA, sought assistance concerning an alleged violation, testified in a proceeding, assisted or otherwise participated in an investigation, or exercised any right under USERRA.