Question

I recently read that there were some changes to the military leave laws. What has changed and what do I need to know as a small employer?

Answer:

Military leave laws apply to all employers regardless of size. While there are California state laws that apply to military leave, generally the broader federal Uniformed Services Employment and Reemployment Rights Act (USERRA), will apply and this is the law that was recently amended. This article will discuss USERRA, however, because of the complexity of these laws, those who need further information on this issue should contact an attorney familiar with these issues or the U.S. Department of Labor.

USERRA governs not only the terms under which an employee must be allowed to take a military leave, but it also governs the rights, benefits, and obligations of employees while out on a military leave and employees’ rights to return to work following such leave. Employers must provide a leave of absence to qualified employees who leave work to serve in the uniformed services. If possible, employees must give advance written or verbal notice of the need for military leave to the employer. Advance notice will be excused where impossible or unreasonable due to military necessity. Employees may elect, but cannot be required to use any vacation, or similar leave, with pay accrued for the time they were absent due to military leave.

To be eligible for re-employment, the cumulative length of the leave and all previous absences from the position of employment for military service cannot exceed five years. Additionally, when the service ends, the employee must provide the employer with a notice of intent to return to employment and must do so within a specified period of time. The amount of notice required depends on the length of service.

If an employee’s period of military service is under 91 days, he or she must be returned to the same position of employment to which he or she would have been entitled had the employment not been interrupted by the military service. If the employee serves for more than 90 days, the employer has the option of returning the employee to a position similar to the position he or she would have had absent the interruption in employment. A similar position is one with like seniority, status, pay and duties. Alternatively, if the employee is not qualified to perform the duties of the new position after reasonable efforts by the employer to qualify the employee, he or she must be returned to the position held before the period of service began.

If an employee serves for more than 180 days, that employee cannot be discharged, except for cause, within one year after the date of re-employment. If the service length was more than 30 but less than 181 days, the employee cannot be discharged, except for cause, for 180 days from the date of re-employment.

Recent changes:

The federal Veterans Benefits Improvement Act of 2004 lengthens the amount of time that eligible employees must be offered continued group health coverage for themselves (and their spouses and dependents) from 18 months to 24 months. This change in the federal law will have no impact on California employers because California COBRA laws require continuation of health coverage for 36 months.

Additionally, the new amendment to USERRA requires employers to provide an annual notice of USERRA rights and obligations to affected employees. A general posting in the workplace where the employer provides general notices to employees will meet this new requirement. The Department of Labor will publish a sample notice on its website at www.dol.gov that employers may post in the workplace.
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