• Ronald A. Flate

When Military Duty Calls Employees

In light of the recent call to active duty received by thousands of United States military reservists, employers and employees alike need to know their obligations to each other when employees serve in the uniformed services. The reemployment rights of military members were revised by Congress in 1994. The main thrust of the legislation is to guarantee the rights of military service members to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other protections.

The federal law applies to all Armed Forces members, including the Reserves, National Guards, the commissioned corps of the Public Health Service, and any others designated by the President during a war or an emergency. Employees of both private and public employers are protected when they have embarked on and have been honorably discharged from military service consisting of active duty, inactive duty training, full-time National Guard duty, or absences for fitness examinations. Unlike some other federal employment statutes, the law on reemployment rights of individuals in the Armed Services has no minimum number of employees for there to be coverage.

An employer is prohibited from using a person’s military service or application for such service as a motivating factor in any adverse employment action against that person. Nor can an employer retaliate against an employee who participates in the reporting, investigation, or filing of claims asserting that the employer violated the federal statute.

To receive the benefit of the statutory rights and protections, an employee generally must give the employer advance oral or written notice of military service. Exceptions to this requirement are recognized when giving such notice would be impossible, unreasonable, or contrary to military necessity.

Employees leaving their jobs for military service lasting less than 31 days are entitled to continued health insurance coverage at the same cost, if any, that active employees would pay. For service lasting more than 31 days, employees may elect to pay for continuation of their health coverage for up to 18 months, or until their reemployment rights expire, whichever comes first. Upon returning to work after military service, an employee is entitled to immediate health insurance coverage, even if returning employees usually face a waiting period.

For purposes of calculating retirement benefits, a period of military service is the equivalent of time on the job. The returning armed services member has a right to any pension benefits that accrued before the military service began, as well as any additional benefits that were reasonably certain to accrue during the employee’s absence. Employees serving their country in uniform must be treated as active participants in benefit plans, rather than as having had a break in service while they were away from work.

When a period of military service has ended, the returning employee has a right to reemployment, subject to some conditions and restrictions. Generally, the cumulative length of military service must not have exceeded five years. In addition, an employee must apply for reemployment within time periods that increase in duration with the length of uniformed service. Similarly, depending on the length of military service, the employee must be given the position he or she is qualified for and would have held but for the military service, or a position of like seniority, status, and pay.

The reemployment obligation will not apply if there has been such a change in circumstances during an employee’s absence that rehiring would be impossible or unreasonable. Employers bear the burden of showing such exceptional circumstances, however. Courts can be expected to construe this and other parts of the reemployment law in favor of returning service members, so as to better achieve the statute’s purpose of encouraging noncareer military service.

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