To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. USERRA provides robust reemployment rights and protections for employees who return to work from uniformed service leave. Subject to the terms and conditions set forth below, any person whose absence from a position of employment with the University is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this Policy in accordance with the following terms and conditions: Such person (or an appropriate officer of the uniformed service in which such service is performed) must provide advance written or oral notice of se… employer upon their timely application for return to work . If the last employer is no longer functional, liability for continuing coverage is allocated to the health plan. Depending on the circumstances, the escalator principle may cause an employee to be seniority or job classification would have resulted in the employee being laid off during the period of service, and the layoff continued after the date of reemployment, reemployment would reinstate the employee to layoff status. USERRA provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. )2 About Sam Wright 1.1.1.7—USERRA applies to state and local governments 1.1.3.3—USERRA applies to National Guard service 1.3.1.2—Character and duration of service Learn about the ombudsman services we provide, For USERRA inquiries, contact the ESGR customer service center at 1-800-336-4590 or submit a request for assistance at the following link: Contact ESGR. USERRAguarantees an employee returning from military service or training the right to be re-employed at his or her former job (or as nearly comparable a job as possible) with the same benefits. If, based on the application of other legitimate nondiscriminatory reasons, the employee’s job position is eliminated, or the employee is placed on layoff status, either of these situations would constitute cause for purposes of USERRA. Wounded warriors want to return to work - and employers can help that transition. Why is this a favorite of mine? OPM will work The employer must make reasonable efforts to accommodate the employee’s disability and to help him or her to become qualified to perform the duties of one of these positions: Yes. USERRA also protects servicemembers from discrimination in the workplace based on their military service or affiliation. Service performed in a uniformed service if he or she was ordered to or retained on active duty under the following circumstances: The employee is deemed to be on furlough or leave of absence from the civilian employer while performing military duty. The beginning of the next regularly scheduled work period on the first full day following completion of service and expiration of an 8-hour rest period following safe transportation home. Discover what servicemembers must be aware of when returning to work. The period beginning on the date on which the employee’s absence for the purpose of performing service begins, and ending on the date on which he or she fails to return from service or apply for a position of employment. USERRA calls the notification to return to work an application for reemployment. You have not been separated from service with a disqualifying discharge or under other than honorable conditions. To be protected, a National Guard or Reserve member must have a civilian job, must provide timely notification to the employer of military duty, and must report back to work for reemployment in a timely manner. What do I need to do while my employee is on military leave? While an employee is on military leave, you must maintain their job status. Find programs and services at your local installation. After completion of weekend drill, what is the time limit for an employee to return to work? For example, an employer cannot require a service member who returns home at 10 p.m. to report to work 2.5 hours later at 12:30 a.m. To be eligible for protection under USERRA, the service member must report back to work or apply for reemployment within the following guidelines: 1-30 days of service: Report next scheduled workday 31-180 days of service: Apply within 14 days completion of service If an employee does not give you advance notice of their absence, you do not have to follow the USERRA military leave policy. Your employer had advance notice of your service; You have five years or less of cumulative service in the uniformed services in your employment relationship with your employer; You timely return to work or apply for reemployment; and. The reemployment position may involve transfer to another shift or location, more or less strenuous working conditions, or changed opportunities for advancement, depending upon the application of the escalator principle. Department of Defense 214 Certificate of Release or Discharge from Active Duty; Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service; Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority; Certificate of completion from military training school; Discharge certificate showing character of service; Copy of extracts from payroll documents showing periods of service. Are not discriminated against in employment based on past, present or future military service. A person, institution, organization or other entity that has denied initial employment to an individual is in violation of USERRA’s anti-discrimination provisions. USERRA does not require the employer to adopt a formal seniority system. It provides returning service members a virtually unfettered right to re-employment with their pre-service employers upon timely application for return to work. The seniority rights, status and pay of an employment position include those established (or changed) by a collective bargaining agreement, employer policy or employment practice. Because USERRA turns all of our usual expectations of a leave of absence law upside down. Trainees are amazed as they learn about USERRA: Supporting documentation comes at the end of the leave, not the beginning. In deciding whether an individual is an independent contractor, the following factors need to be considered: No single one of these factors is controlling, but all are relevant to determining whether an individual is an employee or an independent contractor. Although the Department of Defense may or may not use these sites as additional distribution channels for Department of Defense information, it does not exercise editorial control over all of the information that you may find at these locations. You can use this form to notify your employer that you will be returning to work after being absent from work due to active duty service. Your rights under USERRA. No single one of these factors is controlling, but all are relevant to determining whether an individual is an employee or an independent contractor. 1-30 days of service: Report next scheduled workday, 31-180 days of service: Apply within 14 days completion of service, 181+ days of service: Apply within 90 days after completion of service. If the employee has more than one employer, each employer must be notified of the impending leave of absence due to military service. For instance, upon reemployment, you must be returned to your job with the benefits you would have attained had you not taken leave. The employee may apply verbally or in writing to the pre-service employer or to an agent or representative of the employer who has apparent responsibility for receiving employment applications. If the employee has coverage under a health plan in connection with his or her employment, the plan must permit the employee to elect to continue the coverage for a certain period of time as described below: When the employee is performing military service, he or she is entitled to continuing coverage for himself or herself (and dependents if the plan offers dependent coverage) under a health plan provided in connection with the employment. The USERRA prohibits all employers from discriminating against employees that leave to serve in the military and requires the employer to reinstate the employee if the absence is five years or less. This protection applies to employees who are full time, part time, or probationary, so long as the employment is not brief, non-recurring and not expected to continue for a significant period. A4) Yes. The employee is permitted but not required to identify a particular reemployment position in which he or she is interested. U.S. Supreme Court rules that the "Cat's Paw" theory can create liability for discrimination. The employee is not required to ask for or get his or her employer’s permission to leave to perform military service. The timeframe depends on how long the service member has been absent: You can also contact us if you have any questions. On the other hand, prompt reinstatement following several years of active duty may require more time, because the employer may have to reassign or give notice to another employee who occupied the returning employee’s position. If the employee is not qualified for reemployment in the escalator position because of a disability after reasonable efforts by the employer to accommodate the disability and to help the employee to become qualified, the employee must be reemployed in a position according to the following priority. The employer had advance notice of the employee’s service; The employee has five years or less of cumulative service in the uniformed services in his or her employment relationship with a particular employer; The employee returns to work in a timely manner as defined under USERRA; and. The 24-month period beginning on the date on which the employee’s absence for the purpose of performing service begins; or. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), enacted in October 1994 (and significantly updated in … USERRA entitles most returning service members to reemployment after a period of service. Federal employees have the same USERRA rights and responsibilities as non-federal employees. Your rights under USERRA . Emergency Contacts for Disasters and Evacuations. For immediate assistance or to access confidential help, call the Military OneSource toll free number at 800-342-9647 or international collect at 1-484-530-5908. USERRA applies to virtually all employers, regardless of size, including the federal government. USERRA provides robust reemployment rights and protections for employees who return to work from uniformed service leave. In this status, the employee is entitled to the non-seniority rights and benefits generally provided by the employer to other employees with similar seniority, status and pay that are on furlough or leave of absence. The employee is entitled to the seniority and seniority-based rights and benefits that he or she had on the date military service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if he or she had remained continuously employed. Involuntary active duty by a military retiree; Retention on active duty while in captive status; Involuntary active duty during a national emergency; Involuntary active duty for an operational mission, involuntary retention on active duty of a critical person during time of crisis or other specific conditions; Involuntary active duty by Coast Guard Reserve member for natural or man-made disasters; Service performed in a uniformed service if the employee was ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the president or the Congress, as determined by the secretary concerned; Service performed in a uniformed service if the employee was ordered to active duty in support of a critical mission or requirement of the uniformed services as determined by the secretary concerned; and service performed as a member of the National Guard if the employee was called to respond to an invasion, danger of invasion, rebellion, danger of rebellion, insurrection or the inability of the president with regular forces to execute the laws of the United States. The principle behind the escalator position is that, if not for the period of military service, the employee should be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites that he or she would have attained if not for the period of service. Q4) If an OPSRP member returns to work following a USERRA-qualified period of military service and either resigns or is again recalled to active service, is the employer obligated to complete OPSRP Pension Program employer contributions for that USERRA-qualified period of service? The employee has not been separated from service with a disqualifying discharge or under other than honorable conditions. 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