The federal legislation covering employment rights of military reservists is called the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA affects employment, reemployment and retention in employment when employees serve or have served in the uniformed services. Reemployment rights and benefits are also covered in Code of Iowa Sections 29A.28 and 29A.43. Both federal and state law include a fairly broad prohibition of employer discrimination on the basis of a person’s membership or application for military service, performance of service or service obligations as it relates to the military.
Activation
Any military training by a reservists could be categorized as “active service,” which protects the reservist’s employment rights under federal and state law. USERRA applies to involuntary or voluntary types of duty and requires the employee to give the employer advanced written or verbal notice of military service unless military necessity prevents him or her from giving notice or if it is otherwise impossible or unreasonable. Most training events – of both the weekend and annual variety – are generally known in advance. All aspects of short-term active service is a covered activity under USERRA; although many provisions of both state and federal law are more likely to be applied when longer activations occur.
Pay and Benefits
Code of Iowa Section 29A.28 provides for a 30-day paid leave of absence for the employee unless he or she was hired temporarily for six months or less. The application of this provision of the law has been further shaped by court cases and opinions of the Attorney General. This includes defining the 30 days as calendar days (including weekends and days not usually worked by the employee) and that this type of leave is only available once per year for city employees.
The decision on whether the employee can use compensatory time or sick leave during the activation rests largely with the personnel policies of the employer. However, if a non-reservist employee is allowed to use leave flexibly, then the employer must also allow the reservist the same degree of flexibility. An employer is also prohibited from requiring an employee to use vacation time during activation; however the employee must be permitted to use vacation or other forms of paid leave if requested.
Contributions for retirement programs should continue as long as paychecks from the city are issued to the employee. When the employee returns from military service lasting longer than 30 days, he or she will need to obtain a Certificate of Release or Discharge from Active Duty (also known as a Form DD214). Both the Iowa Public Employees Retirement System (IPERS) and the Municipal Fire and Police Retirement System of Iowa (MFPRSI) provide a process for which system members can obtain service credit for military leave. In the case of IPERS, the city must complete the Application for Free Military Credit Form available from IPERS to obtain this credit. IPERS will determine the member’s eligibility under federal and state law and record the applicable service credit. A similar process exists for MFPRSI members to receive credit. Upon the employee’s return and notification from MFPRSI, the employing city is required to provide employer contributions for the period of military service.
An employer is not required to provide insurance to the reservist called up for active service. Once activated, the reservist is covered under the military health care system. If the reservist is activated for more than 30 days, the reservist’s family members are covered under the Civilian Health and Medical Program of the Uniformed Services from the first day of duty. The employer, however, is still required to offer group coverage at the reservist’s personal expense under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The employee or employer should check with its insurance carrier to determine COBRA requirements.
Reporting Back to Work
The reservist has reemployment rights following activation that allow him or her to return to work with at least the same pay, benefits and seniority. Under USERRA, reemployment needs to reflect the “escalator” principle. The escalator principle requires that each returning service member be reemployed in the position the person would have occupied with reasonable certainty if the person had remained continuously employed with full seniority. It is also important to note Code Section 29A.43 which states that “[t]he period of absence shall be construed as an absence with leave, and shall in no way affect the employee’s rights to vacation, sick leave, bonus or other employment benefits relating to the employee’s particular employment.”
- To be eligible for reemployment, an employee must meet the following USERRA conditions:
- Hold a position of employment prior to military service. The position does not have to be full time or permanent; but temporary, brief or non-recurrent jobs are not protected.
- Leave employment to enter active duty.
- Be released from active duty under certain conditions, but does not have to be released under an “honorable” discharge. A “general,” “medical” or other discharge may apply.
- Apply for reemployment in a timely manner following release from active duty. Application deadlines depend on the length of service. For less than 30 days, the employee generally needs to report back to work at the next normal shift following release, travel home and eight hours’ rest. For a service length between 31 and 180 days, the employee has 14 days following release to apply for reemployment. For more than 180 days, the employee has 90 days; and if the employee is injured while on activation, the timeframe to report back to work is extended up to two years after military separation and discharge from medical care.
