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ASA DIX LEGAL BRIEF - page 3 / 4





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(4) Training and other accommodations. An employer must make "reasonable efforts" to train a service member on new equipment or techniques, refresh skills not used during service, and accommodate a service- connected disability, or to offer the service member alternate employment. There is some overlap between USERRA and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111, however, the ADA exempts employers with fewer than fifteen employees, while USERRA contains no such exception.

(5) Special protection against discharge other than for cause. If a returning service member is fired within a protected period, the employer has the burden of proving that the discharge was for cause, and not in retaliation for USERRA-protected service. The protected period is one year for service members gone for 181 days or more, and 180 days for service members gone for 31 to 180 days. Service members gone for 30 days or less are protected only by the general anti-discrimination clause of USERRA, with no specified protected period.

(6) Immediate reinstatement of health benefits. The employer or employer's health insurer can impose no waiting period and no exclusion of pre-existing conditions, other than for VA-determined, service-connected conditions. A returning service member is entitled to reinstatement of health coverage whether or not the service member elected to pay for health coverage through the employer during the absence.

(7) Pension benefits. For purposes of pension benefits, employers must count any period of service protected under USERRA as if it were service with the employer. This applies both to benefit eligibility (vesting) and to benefit computations. If the pension plan does not require employee contributions, the service member gets credit as if she or he had never left work. If the plan uses employee contributions or deferrals, the returning service member gets up to three times the period of absence (up to a maximum of five years) to make up any missed contributions.

(8) Anti-discrimination provision. USERRA prohibits discrimination based on military service or obligations. If military service was a factor in an employer's adverse action, the employer must prove that the adverse action would have been taken in the absence of the employee's military service or status. USERRA also prohibits retaliatory action against witnesses and those who take action to enforce USERRA protections.

Q: Is an employer required to pay an employee while he or she is performing military duty? USERRA does not require employers to pay individuals for time not worked due to military service. However, federal employees have a right to one-hundred and twenty (120) hours of paid military leave each fiscal year, and approximately 40 states have similar laws for state employees. Some employers prefer for employees to use vacation days or paid leave when they are performing military training. However, employees have the right to use "vacation, annual, or similar leave with pay" before beginning military service. The decision whether to take such leave prior to performing military duty is the employee's decision, and the employer cannot require the employee to do so.

Q: What is the Reserve Income Replacement Program (RIRP)? The RIRP is separate from USERRA and provides limited payments to activated reservists and national guardsmen if they incur a reduction in their income. The program is effective 1 August 2006 and is scheduled to expire on 31 December 2008. In order to be eligible for payments, there are specific length of service requirements, the service member must be serving in an involuntary status, and must be able to prove their civilian income was higher than their military income. Service members may verify eligibility by submitting DD Form 2919, along with the required income documents and documents verifying the period of involuntary active duty service, to the appropriate military personnel office. Assistance can be obtained from the service points of contact as listed on www.dod.mil/ra.

Q: May a service member waive their rights under USERRA? An employer may ask a departing service member to sign a statement saying the service member does not intend to return to the civilian job, or a more limited waiver of the service member's right to seniority and/or non-seniority benefits. Despite signing such a

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