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March 27, 2003: Know The Rights Of Employees Serving In Military

March 27, 2003
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PITTSBURGH — Americans who have left civilian life to serve in the armed forces, including the National Guard and Reserves, have certain prescribed employment rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The following list prepared by the attorneys of Eckert Seamans Cherin and Mellott LLC of Pittsburgh summarizes those rights to assist employers with compliance with USERRA when an employee has been called to duty.

General Overview Of USERRA

  • It covers voluntary or involuntary service in the U.S. armed forces, the Reserves, the Coast Guard, the National Guard, or the public health service.

  • A military leave is considered a leave of absence, not a termination of employment.

  • It prohibits any discrimination against an employee on military leave, including retaliation for taking excess leave.


  • If the military service was 90 days or less, the employee is entitled to reinstatement in the job in which he or she would have been employed but for the military service.

  • If the military service exceeded 90 days, the employee may be returned to a similar position with the same seniority, pay, and benefits.


  • USERRA focuses on preserving "seniority," which means the employee must be treated as if he or she had been continuously employed during the military leave. In other words, pay and benefits must be restored to the level the employee would have received but for the military service.

  • The employer must use reasonable efforts to qualify a reemployed veteran for the position he or she is being returned to, including making reasonable accommodations for disabilities incurred while on military duty.

    Employee Responsibilities

  • The employee must give advance notice of the leave except if it is impossible or unreasonable due to the circumstances. There is no specified period for giving the notice. Note that written notice is not required.

  • An employee must report back for work after discharge within certain time frames, depending on length of military service: (1) For 30 days or less, must report back within one day after discharge; (2) For 31-180 days, must report back within 14 days after discharge; (3) For more than 180 days, must report back within 90 days after discharge.

  • An employer can request documentation to establish the employee's entitlement to reinstatement, but cannot refuse reinstatement if the documentation does not exist or is not readily available.

    Length Of Leave

  • Reemployment rights are protected for leaves lasting up to 5 years when aggregated.

  • This period can be extended for special circumstances.

    Protection From Discharge

  • If the period of active duty was between 30-180 days, returning veterans are protected from discharge (other than for cause) for 180 days.

  • If the period of duty was more than 180 days, returning veterans are protected from discharge for 12 months.

    Salary And Benefits

  • The employer is not required to pay an employee while on military leave, but must allow the employee to use accrued vacation.

  • However, the employer cannot treat a military leave of absence any worse than a regular leave (i.e., if regular leaves are paid for a certain period, the employer would have to also pay the same for military leave).

    Health Benefits

  • Health coverage must continue on the same basis as active employees for the first 30 days of leave, then must offer COBRA-like coverage for a maximum of 18 months.

  • COBRA period and USERRA coverage can run concurrently, but must provide COBRA notices at the beginning of the leave.

    All Retirement Plans

  • The employer cannot treat a reemployed veteran as having incurred a break in service.

  • The employer must count military service of a reemployed veteran toward vesting or credited service for benefit accrual.

    Specific Retirement Plan Considerations

  • In a defined benefit plan, all benefit accruals must be credited for the period of leave for a returning veteran.

  • In a defined contribution plan, employer contributions must be made to a returning veteran for the period of leave if made to other employees (i.e., profit sharing, money purchase, or ESOP contributions).

    401(k) Plans

  • In a 401(k) plan, the returning veteran must be given the opportunity to make up any missed elective contributions.

  • Any related matching contributions must be made up if missed elective deferrals are made.

    Other Rules On Defined Contribution And 401(K) Plans

  • For any make-up contributions to a defined contribution plan (i.e., profit sharing contributions, participant deferrals, or match), the employer is not required to make up earnings or forfeitures.

  • Loan repayments may be suspended for the period of service (plan document or loan procedures should so provide).

    State Laws

  • State laws that grant greater rights than USERRA are not preempted.

    For more information, contact Sandra R. Mihok of Eckert Seamans at 412-566-1903.

    Publication date: 03/24/2003

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