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ASA DIX LEGAL BRIEF - page 2 / 4





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are not applicants for new employment but rather had previous positions and left work to perform military service. For absences of 181 days or longer, the service member must apply for work not later than 90 days after completing service. Service members returning from absences of 181 days or longer should make a written application and make clear that they left a previous position for military service. Extensions are possible if the service member was hospitalized for or convalescing from a service-connected injury or illness, or was otherwise unable to meet the time requirements above for reasons beyond the service member's control. Service members who don't meet the time requirements do not automatically lose the protections of USERRA; rather their cases are determined under the employer's ordinary absence and disciplinary policies.

Q: What protections must an employer give under USERRA? Service members are entitled to protections that apply while they are absent due to military duty, as well as upon their return to work. The following protections apply while the service member is performing military duty:

(1) Health insurance for the service member and family members. Upon request, service members can maintain health coverage, subject to the normal employee's contribution, for up to 30 days of service. Family members of Guard and Reserve members, called to active duty for more than 30 days, are eligible for TRICARE benefits the day their military sponsor mobilizes. TRICARE does not cover family members for tours of 30 days or less, so it makes sense for most service members with family members to continue private family member coverage for tours of 30 days or less. Service members can maintain civilian employer- sponsored health coverage for up to 18 months, at their request, but employers can charge up to 102% of the full premium under the plan, including any employer contribution.

(2) Other Benefits. USERRA requires an employer to treat an employee who serves in the armed forces like any other employee of similar seniority and status who is on furlough or leave of absence. For example, if the employer offers employees on furlough or leave of absence holiday bonuses, low cost life insurance or loans, etc., a serving service member-employee is also entitled to them. If the employer has more than one kind of furlough or leave of absence, the service member is entitled to the most generous treatment for comparable periods of time.

The following protections apply upon a service member’s return to employment:

(1) Prompt reinstatement. Service members away from their civilian employment for 30 days or less are entitled to immediate reemployment and are required to report back to work at the start of the first regular shift starting at least eight hours after safe travel time from their release from duty. All other covered service members must be reemployed promptly.USERRA does not define "prompt," but the intent of the law is reemployment within days as opposed to weeks or months. If an employer can prove that reemployment is impossible, unreasonable, or would impose an undue hardship on the employer, the employer need not reemploy the service member, but the employer has the burden of proof.

(2) Seniority. Service members away from their civilian employment for 90 days or less are entitled to the exact job they left. If service was more than 90 days, the employer has the option of giving the returning service member a position of like seniority, status, and pay. For all absences, USERRA incorporates the "escalator principle," which means returning employees are entitled to the same seniority they would have had if they had never left the employer for military service. If their pre-service peers were promoted or received raises in their absence, the returning service member is entitled to the same raise or promotion. Conversely, if their pre-service peers took pay cuts, or their jobs were eliminated, the returning service member gets the same adverse treatment.

(3) Status. Returning service members are entitled to the same status they would have attained if continuously employed. This includes job title, location, the opportunity to work during the day versus at night, and the opportunity to work in departments where there are better opportunities to earn commissions.

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