• New Military Leave Law Affects ALL Employers
  • June 7, 2005 | Author: Regina Alberini Young
  • Law Firm: Rogers Towers, P.A. - Jacksonville Office
  • On December 10, 2004, President Bush signed into law the Veterans Benefits Improvement Act of 2004 ("VBIA"). The VBIA, which applies to all employers regardless of their size, amends the existing Uniformed Services Employment and Reemployment Rights Act ("USERRA") in two significant ways:

    New Notice Requirement
    The VBIA has added yet another posting requirement for employers. Specifically, the VBIA requires employers to provide employees with specific information regarding their rights and benefits under USERRA. Employers can satisfy this notice requirement by placing a poster in a location where the employer customarily places notices to employees. This posting requirement took effect on March 10, 2005. The Department of Labor ("DOL") has prepared a model poster for employers' use. If you would like a copy of the poster, feel free to contact me. You may also obtain the poster from the DOL.

    Extended Health Care Benefits
    For those employers who choose to provide health insurance coverage for their employees, USERRA currently requires that such coverage be continued while an employee is on a military leave of absence. In other words, employees and their dependents are entitled to COBRA-like continuation coverage while serving in the military. When first enacted in 1994, USERRA set the maximum duration of continued health care coverage at 18 months. VBIA, however, extended the maximum duration of continued health care coverage to 24 months. This change in the law applies to any employee who elects continuing coverage on or after December 10, 2004.

    The notice requirement and the extended health care benefits discussed above are new requirements for employers. Keep in mind that employers have many other obligations under USERRA regarding employees who take military leave or who have taken military leave. As a reminder, the following is a summary of some of the more important aspects of USERRA:

    Re-employment Rights: In general, an employee returning from military leave is entitled to re-employment to his original position -- or one of comparable seniority, status and pay -- unless workplace conditions have changed so radically that reemployment would be "impossible" or "unreasonable."

    The Escalator Principle: In general, employees returning from military leave must be placed in the job position they most likely would have reached had they stayed on the job. Conversely, if an employee's job is downsized during his or her military leave, the employer is not required to create a new position.

    Vacations and Benefits: If your company grants employees vacation days based on years of service, the returning employees' benefit must be calculated as if they never left. In addition, if your retirement plan has a specific vesting schedule, the returning employee must be credited with the time spent on active duty.

    Protection from Termination: Depending upon the length of military service, employees returning from military leave have certain protections from discharge, except discharges "for good cause."

    Discrimination Prohibited: Employers may not discriminate or retaliate against any employee or applicant based on that individual's membership in, application for, or performance in a uniformed service.

    The DOL will soon provide more detailed guidance about an employer's obligations under USERRA, as the DOL has already issued proposed regulations interpreting USERRA. The final version of these regulations is expected in June of this year. With tours of duty increasing in length and number, these much anticipated guidelines come at a critical time for employers.