Uniformed Services Employment and Reemployment Rights Act (USERRA)
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides certain protections for employees who must be absent from work due to uniformed service. These protections include reemployment rights, protection from discrimination, and the right to continue his or her group health coverage. All employers regardless of size must comply, including non-profit employer, church plans, governmental employers, and the private sector.
Employers are required to post a notice entitled "Your Rights Under USERRA." A copy of the poster is available on the Department of Labor (DOL) website.
Group Health Plan Continuation
An employee who is absent from work due to uniformed service is entitled to continue his/her group health coverage for a period of 24 months. If the leave of absence is to be 30 days or less, the employer should pay its normal share of premiums. If the leave of absence is expected to be 31 days or more, the employer is not required to pay its normal share of premiums (not even for the first 30 days). The applicable premium cannot be more than 102% of the normal cost.
An employer is not required to send an individualized notice regarding USERRA rights at the time of an employee's eligible leave. However, it is a best practice to do so. If the employer is also subject to COBRA, they could provide the regular COBRA notice and election form and attach a notice of USERRA rights to the COBRA packet. There is not model language for such a notice, but there are some general guidelines.
- Include a statement that the individual has rights under both USERRA and COBRA.
- An election under COBRA would be a concurrent election under USERRA.
- USERRA provides for up to 24 months of coverage.
- The premiums and payment procedures described in the COBRA election form would apply for continuation coverage under USERRA.
- Continuation coverage under USERRA will terminate if a) premium payment is not made within required timeframe; b) the employee fails to report to work within the required timeframe prescribed by USERRA following completion of uniformed service; c) dishonorable discharge or other conduct as permitted by USERRA.
There is not a required timeframe for employees to elect USERRA coverage. However, the employer may specify "reasonable requirements addressing how continuing coverage may be elected." The 60 day timeframe used by COBRA is generally considered "reasonable." Therefore, if the employer so chooses, they could also add to the notice a statement indicating that election procedures discussed in the COBRA election form and notice would also apply for USERRA election of continuation coverage. If the employer does not specify a "reasonable" election period for USERRA coverage, essentially the employee could then elect USERRA coverage at any time during the 24 month period.
If the employee does not continue his/her coverage through COBRA or USERRA (or if he/she exhausts the coverage before returning), the employee is also entitled to a reinstatement of benefits upon re-employment.
An employee is entitled to be reemployed by their employer if the following criteria are met:
- The employee gave advance written or verbal notice to the employer of their military service.
- The employee must return to employment within five years. This period of time is calculated by adding all of the employee's leave time for uniformed service.
- The employee reports for work or applies for reemployment within the required timeframes. (Discussed below)
- The employee was honorably discharged from military service.
If the employee's uniformed service is:
- For a period of 30 days or less, the employee must report to work with the employer no later than the beginning of the next work period following the end of service plus eight hours.
- For a period of 31 days to 180 days, the employee must apply for reemployment within 14 days of completing uniformed service.
- For a period of 181 days or more, the employee must apply for reemployment within 90 days after completing service.
May a pre-existing condition exclusion period or waiting period be imposed on an employee returning from uniformed service?
USERRA prohibits the application of a waiting period or pre-existing condition exclusion period that would have otherwise not been applied to the employee. As an example, let's say that the group health plan has a six-month waiting period. At the time the employee left for uniformed service, he had only completed one month of the waiting period. If his leave is for a period of two months, he would still have three months of the waiting period to complete upon reemployment. However, if the employee's leave is for a period of one year, the employee must be entitled to benefits immediately upon reemployment because his six month waiting period is considered to be met during his leave.
There is an exception if the employee has a condition that occurred during military service or was aggravated by the military service. In this case, the plan is permitted to impose an exclusion or waiting period for coverage of that condition.
Upon reemployment, must the employee be returned to the same position?
If the employee meets the required criteria discussed above, he or she must be returned to the same position the employee held prior to the leave or a position that is equivalent in seniority, status, pay, and duties of which the individual is qualified to perform.
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