With the U.S. war in Afghanistan, more and more reservists are being called to active duty. Some reservists may be on active duty for six months or longer and are unsure of their rights concerning their job and benefits.
The federal Uniformed Services Employment and Re-Employment Rights Act (USERRA) establishes the rights of reservists and the National Guard to return to work at the end of their service. The USERRA applies to all employers regardless of their size and protects those serving in the U.S. reserve forces of the Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service Commissioned Corps and the National Guard. The U.S. Department of Labor, through the Veterans' Employment and Training Service (VETS) provides assistance to all persons having claims under USERRA, including federal and Postal Service employees.
While on active duty, employees must receive all benefits available to other employees on comparable leaves of absence. Employees also may use accrued vacation while on leave but cannot be forced to do so.
If you are a permanent employee, the USERRA requires employers to reinstate you to your former job after active duty or to a comparable position with the same status, seniority and pay. To be eligible for reinstatement, you must:
- Give advance notice prior to leaving;
- Be on active duty for less than five years (excluding certain service required by a declared war or national emergency);
- Not be dishonorably discharged or separated under other than honorable conditions; and
- Report back to work in a timely manner after discharge.
When you return to work, you are entitled to the same status, pay and benefits as you would have received had you not gone into active duty. If you cannot perform the job, your employer must use reasonable efforts, such as training, to enable you to upgrade or refresh your skills to become qualified for that position. Your employer cannot consider your time on active duty as a break in employment for pension benefit purposes, and your military service must be considered service with an employer for vesting and benefit purposes.
Although federal law guarantees reservists and the National Guard their jobs, it does not require employers to continue to keep paying for health insurance. Some large companies keep paying the insurance for reservists and the National Guard, but many small companies do not. If you are a reservist or National Guard member who loses health care insurance, you can pay for health care insurance under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which provides health coverage continuation rights to employees and their families after an event such as reduction in employment hours. If your military service is for 30 or fewer days, you and your family can continue coverage at the same cost as before your service. If military service is longer, you and your family may be required to pay as much as 102 percent of the full premium for coverage.
You also may pay for the care yourself or use Tricare, a U.S. Department of Defense agency that provides insurance for members of the military.
A Federal employee who is a member of the National Guard or Reserves is entitled to 15 days (120 hours) of paid military leave under 5 U.S.C. 6323(a) each fiscal year for active duty, active duty training or inactive duty training. An employee on military leave under section 6323(a) receives his or her full civilian salary, as well as military pay. This leave accrues at the beginning of each fiscal year, and all Guard or Reserve members, including those on extended active duty, should be credited with 15 days of paid military leave on Oct. 1 of each year.