Wirtz Law Blog

Many workforces include active members of the military. When an employee notifies an employer of an absence from work due to military service, a letter should be sent to the employee thanking them for the advanced notice (which is not legally required) and confirming the beginning date of the leave. To make sure of the legitimacy of the request, the employer should request a copy of the employee’s orders.

In addition, the letter should set forth that the leave of absence will be governed by the Uniformed Services Employment and Reemployment Rights Act (USERRA). Make it clear that to qualify under the USERRA, the absence must be due to “service in the uniformed services,” which includes the Army, Navy, Air Force, Marine Corps, Coast Guard and the Reserves for each of those branches; Army National Guard; Air National Guard; commissioned corps of the Public Health Service; and any other category of people designated by the President of the United States in time of war or national emergency.

The letter should also address how the employee’s compensation and benefits will be handled. During the leave of absence, because the leave is unpaid, the employee should be given the option to apply any earned, accrued vacation time before the beginning of the unpaid military service leave.  Make it clear that the employee is not obligated to use vacation time. Inform the employee that his or her medical benefits and the associated premiums will be charged at the employee contribution amount for the first 31 days, but continuation of medical benefits beyond 31 days will be charged at no more than 102% of the full medical premium associated with the coverage. The employee has a choice between extended coverage under COBRA or USERRA, which have important differences that need to be discussed with the employee. (For a detailed explanation of the differences, link to Military Leave Medical Benefit Choice:  USERRA or COBRA.) Let the employee know whether to send the premiums directly to the insurer or to the employer.  Depending on the employer’s policies, the employer should also state whether the employee will be eligible for holiday pay if a holiday falls during the leave.

It is equally important to inform the employee of his or her reinstatement rights. The letter should inform the employee that upon the completion of the employee’s military service, not exceeding five years, he or she will be eligible for reemployment within two weeks of an application for reemployment as provided by the USERRA. Let the employee know that the application for reemployment needs to include antibiotics confirmation of the employee’s good standing with the military and must be timely as follows under USERRA provisions:

• If the absence is for a period of 30 days or less, the employee must report to work on the next full, regularly scheduled workday, plus 8 hours.
• If the absence is for a period of 31 to 180 days, the employee must notify the employer of an intent to return to work within 14 days following the end of his or her military service.
• If the absence is for a period of 181 days or more, the employee must notify the employer of an intent to return to work within 90 days following the end of his or her military service.

The employer should also express an understanding that reporting to work or providing timely notice of an intent to return to work may be impossible or unreasonable through no fault of the employee. In such a case, the employee is permitted under the USERRA to report as soon as possible (absences of 30 days or less) or to provide notice by the next full calendar day after it becomes possible to do so (absences of 31 to 180 days).

The employer should also make it clear that under the guidelines provided by the USERRA, the employer will make every effort for a return to at least the position (or equivalent position) held prior to the military leave. It is also a good practice to notify the employee that his or her military service time will be counted toward seniority with the employer as if he or she were not away on a military leave.

Lastly, the employer should point out that the USERRA is a complex law and the letter is only a short summary of some of the salient provisions of the act. Should the employee have have any questions regarding this notice or other aspects of the USERRA application to his or her situation, direct them to a specific contact within the company.

The tone of the letter should reflect respect for the employee and an eagerness to accommodate the important service being provided by the employee to both community and country.

For more information call the experienced trial attorneys at (858) 259-5009 for a free case evaluation.

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