Preventive Law
Preventive Law Corner - USERRA – Part II, When Military Service Leave has Arrived
By Raquel Perry - Schwartz & Eichelbaum P.C.
May 9, 2008, 08:32

USERRA – Part II

When Military Service Leave has Arrived

A district employee had been identified as an established uniformed service member.  The time has come for the district to determine its obligations when releasing the employee for military duty and then returning the service member to employment rolls.  This installment of our USERRA series will examine the parameters and commitment districts must demonstrate for their military employees when the employee is called for duty.

Notice Requirements 

USERRA requires that the employees give their employers advance notice of their impending military service.[1]  An employee who fails to provide advance notice is not entitled to the protections and benefits of USERRA.  The notice may either written or oral, and it may be provided by either the employee or an appropriate officer of the military branch in which the employee will be serving. 

However, districts should be aware that advance notice is not required if “military necessity” prevents the employee from giving notice or if giving notice is otherwise impossible or unreasonable.  Which begs the question – what constitutes military necessity?  The Secretary of Defense is vested with the sole authority to determine what qualifies as military necessity.  Otherwise, USERRA does not set out specific time frames for providing advance notice. 

Although, there is no set standard, it is appropriate to apply a totality of the circumstances test in determining whether the employee provided appropriate notice of the need for military leave.  Basically, employers can consider the length of the absence, the amount of advance notice, the effect the length of notice has on the district, and the amount of advance notice the employee had been given from the military.  Additionally, employers can consider how the length of the notice compares to common workplace situations, such as calling in due to illness and/or the amount of notice required for using personal leave.  For example:  A Spanish teacher calls the morning she is supposed to be teaching class to give notice that she is leaving that day for military duty, causing the district to find a substitute on short notice.  The district subsequently learns that the teacher had known for three weeks prior to giving notice that she was being called to active duty and would require military leave.  It would be appropriate for the district to treat the teacher like any other employee under the personnel policies and upon her return from military duty, issue her discipline for not giving proper advance notice of unscheduled leave.

What about documentation? 

Well, even though employees are not required to provide written notice that they are leaving for military duty, does the employer have the right to request documentation for either departure for military service or return from it?  Yes and no.  Employers frequently and understandably want official documentation from the military whenever an employee leaves or when an employee returns.  USERRA has very specific standards that employers must adhere to regardless of the employer’s personnel rules or policies.   

Documentation on departure:  USERRA does not require the employee to provide written notice prior to departure for duty.  Employers may ask for, but cannot require employees to provide military orders or other official documentation prior to departing for military duty.  Additionally, military orders are not issued for inactive duty, which includes weekend drills and day drills.  While orders are issued for all active duty, the employee does not always receive a copy of the orders prior to departing on active duty.  If the employer desires to verify that an employee is performing military duty, you can contact the employee’s military commander for verification,

Documentation upon return:  Employers cannot require employees who are absent due to military service for 30 or fewer days to provide written documentation regarding their absence.  Employees who are absent from military service for 31 days or more may be required to present documentation to establish their right to reemployment.[2]  The documentation may be required to show that:

*          the employee’s application for re-employment is timely;

*          the employee has not exceeded the 5-year service limitation, and;

*          the employee’s separation from military service was not disqualifying.

A word of caution here:  If an employee is unable to provide the necessary documentation on applying for re-employment because it is not readily available or does not exist, the district must still re-employ the person.[3]  If documentation can subsequently be provided, and it establishes that the employee was not eligible for re-employment, then employment may be terminated.  However, the termination will be effective at that time, not retroactively. 

Disqualifying service

            USERRA requires that service members must serve honorably to be entitled to the statute’s protections and benefits.  There are four types of unacceptable military service that result in a forfeit of an employee’s USERRA benefits and protections:[4]

(1)   Separation from military service with a Dishonorable Discharge or Bad  Conduct Discharge;

(2)   Administrative separation from military service under “Other than Honorable Conditions.”  Each Service’s regulations specify when an administrative discharge is considered “Other than Honorable”;

(3)   Dismissal of a commissioned officer by a court-martial or at the direction of the President in time of war;[5]

(4)   Being “Dropped from the Rolls” when the service member has been absent without leave more than three months.

The type of discharge will be listed on the documentation (normally the DD214 discharge certificate) the employee provides.  Again, if one of these types of discharge is listed then employment can be terminated immediately.

Reporting back to work 

USERRA sets out a specific schedule for employees to follow when they have been absent because of military service.  The period to seek re-employment begins when the employee has been released from military duty.  A person is considered released from inactive duty following the completion of the drill or training period.  The date of release from active military duty can be found on the service member’s discharge certificate (DD214).  The time limits for returning to work depend on the duration of a person’s military service:

(1)   Service of 1 to 30 days.[6]  The employee must report for work at his or her next regularly scheduled work period that begins the next day following the completion of service.  However, this is only after allowance of safe travel home and an 8-hour rest period (called the 8-Hour Rule).  For example: A district cannot require a service member who is an elementary school teacher and normally reports to work at 7:15 a.m. to report if they return home from military leave at 11:30 p.m. the night before because that would not allow them an 8-hour rest period.

(2)   Service of 31 to 180 days.[7]  An employee must apply for re-employment no later than 14 days after the completion of military service.  If the employer’s offices are not open on the 14^th day or no one is available to accept the application, the time extends to the next business day.

(3)   Service of 181 or more days.[8]  The employee must apply for re-employment no later than 90 days after being released from active duty.  Again, if the employer’s offices are not open on the 90^th day or there is no one available to accept the application, the time extends to the next business day.

(4)   Absences for Physical Examinations regardless of length of absence.[9]  The employee must report for work at his or her next regular shift on the first full calendar day following the completion of military service, except where the 8-hour rule is applicable.

(5)   Service members with illnesses.  Service members who are hospitalized or convalescing because of a disability or illness which was incurred or aggravated while on military duty are entitled to up to a two-year extension to seek re-employment.[10]

A returning service member does not automatically lose USERRA protections and benefits because he or she fails to apply within the statutory deadlines.  Basically, if the service member applies after the deadline, the service member will be subject to the employer’s personnel policies.  For example: if the employer has a policy that provides for a written warning for an unauthorized absence and termination for three consecutive days of unauthorized absences, a service member applying two days after the deadline would still have to be re-employed, but could be disciplined for the unauthorized absences.

Needless to say, districts will have to closely analyze each employee’s military service situations and determine their appropriate actions.  There are no cookie cutter approaches when dealing with military leaves. 

Our final segment in this USERRA series will explain how returning service members are to be reinstated into the workplace and will tackle the often confusing questions about job placement, seniority rights and establishment of benefits. 

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