UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA)

DEFINITION. The term “qualified military services” means voluntary or involuntary performance of active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and absences due to examination for determination of fitness, or funeral honors duty.

PENSION PLANS. Pension Plans comply with USERRA if qualified military service:

    (1) is not treated as a break in service with the employer, and

    (2) is considered service with the employer for purposes of:

            (a) determining the non-forfeitability of the individual's accrued benefits under the plan, and

            (b) determining the accrual of benefits under the plan. Repayment of plan loans are suspended during an employee's uniformed service time. Also, make-up contributions are not subject to annual limits on contributions. “Make up” contributions made in Year 3, for example, for Years 1 and 2, may exceed the “make up” contribution limitation for year 3, but only to the extent the “make up” contribution in Year 3 is limited by the “make up” limitation then in effect for Years 1 and 2.

HEALTH PLANS. USERRA provides employees with guaranteed continued health care coverage in which they and their dependents are participants during uniformed service. The coverage is required to be the lesser of

            (a) the 18-month period beginning on the date on which the person's absence begins; or

            (b) the day after the date on which the person fails to apply for Reemployment as set forth below. Additionally, a veteran or other employee (and their eligible dependents) returning from service in the uniformed service is guaranteed the right to reinstatement in the employer's “health plan” without coverage limitations. Plans are not permitted to impose exclusions and waiting periods, except where the Veterans Administration has determined that a disability is service connected in that it was incurred in, or aggravated during performance of uniformed service. More beneficial state laws and employment contracts supersede USERRA; disadvantageous state laws and employment contracts are superseded by USERRA. Premium must be same as regular employees, unless the period of military service exceeds 31 days in which case the COBRA premium of 102% of normal coverage is the cap.

REEMPLOYMENT. USERRA strictly requires mandatory reemployment to the same position.

LESS THAN 32 DAYS (APPLY FIRST DAY OF WORK FOR REINSTATEMENT). If an employee has less than thirty-two days of active military service, for reinstatement, employees must report to employers by the first day of the first full regularly scheduled work period after military service cease and the expiration of eight hours after a period allowing for the participant’s safe transportation from the place of service to their residence.

MORE THAN 31 DAYS; LESS THAN 181 DAYS (14 DAYS TO APPLY). For reinstatement, for an employee with more than thirty-one days of military service, but less than 181 days, of active service, the employee must submit an application for reemployment not later than 14 days after the completion of a period of service.

MORE THAN 180 DAYS (90 DAYS TO APPLY). For reinstatement, if an employee has more than 180 days, then an employee must submit an application for reemployment not later than 90 days after completion of a period of service.

HOSPITALIZED OR CONVALESCING; LESS THAN TWO YEARS (TWO YEARS TO APPLY). For reinstatement, if an employee is hospitalized, or is convalescing from an illness or injury incurred or aggravated during a tour of duty in the uniformed services, the employee has until recovery from that illness or injury to submit an application for reemployment, provided that the period of recovery does not exceed two years (extended by the minimum time required to accommodate circumstances beyond the employee's control which make reporting within the period specified impossible or unreasonable).

Copyright 1996 - 2006, McChesney & Dale, P.C.