U.S. military deployments have forced employers to face the loss of valuable employees called for military service. The loss may be especially difficult for health care providers, as nursing staff and other health care professionals already in short supply take leave to fulfill their military obligations. As they struggle to address the staffing gaps and benefits issues created by employees leaving for military service, employers should make sure they understand the job and benefit protection that the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides for members of the uniformed services. All employers, regardless of size (including federal, state, and local government) must comply with USERRA requirements.

Under USERRA, employees may take up to five years of leave to perform military service. Employers are prohibited from discriminating against employees who exercise this right. According to USERRA, "Service in the uniformed services means voluntary or involuntary duty in a uniformed service, including active duty, active duty for training, inactive duty training, full-time National Guard duty, or absence for a military physical." Employees called for military service are required, whenever possible, to provide employers with advance written or verbal notification (i.e., copy of employee's military orders).

Compensation
USERRA does not require employers to compensate employees who are on leave for military service, but it does entitle military-leave employees to the same benefits provided employees on other forms of unpaid leave. Employers must provide employees on military leave with the option of COBRA-type health plan coverage. The plan must include eligible dependents. Coverage must continue for an 18-month period starting from the day the employee's absence begins due to military leave or the day after the date on which the employee fails to apply for or return to work, whichever is less.

Reinstatement
Employees have a specific time period by which to notify their employers that they are ready to return to work, which varies based on the length of the employee's military service.

Less than 31 days of military service — Employee must report to work on the first regular work day after end of service.
From 31 to 180 days of military service — Employee generally must reapply for employment within 14 days after end of service.
Greater than 180 days of military service — Employee must reapply for employment within 90 days after end of service.

USERRA provides that once military service is completed (with an honorable discharge), an employee has the right to employment reinstatement. Returning employees must be returned to the same status as before military leave, with accrued seniority and benefits as if they had been continuously employed.

USERRA states that employees who are reinstated may be discharged only for cause during a defined period of time after they return to work. The length of the protected employment term depends upon the amount of time the employee spent in the service.

If military service was less than 180 days but greater than 30 days, the employer cannot terminate the employee for 180 days, except for cause.
If military service was greater than 180 days, the employer cannot terminate the employee for one year, except for cause.

91-day Rule
Employees serving in the military for less than 91 days must be reemployed in the position they would have attained had they been employed continuously, as long as they are qualified for the job or can become qualified with reasonable effort. A returning individual who is not qualified for the higher-level position he or she could have attained must be reemployed in the same position or in a position that is as close as possible to that held before the leave. An employer cannot offer other jobs of equivalent status.

Employees who serve in the military for more than 91 days who cannot qualify for the position they would have attained; who no longer qualify for their former position; or who do not qualify for a position of equivalent seniority, status, and pay must be placed in a position of "like status" for which they are qualified.

Returning employees are entitled to the same level of seniority and benefits they would have received had they not gone on leave. A benefit is seniority based if it is determined by or accrues with length of service.

If an employee is injured or disabled while on duty, the individual's leave time may be extended for up to two years while convalescing. Upon employment reinstatement, the employer may be required to provide reasonable accommodation or provide retraining. If reinstatement does not occur, the employer has the burden of proving undue hardship.

Loans are available to employers to assist them in coping with the adverse effects of losing essential employees to military service.

Enforcement
Employees and the federal government can sue employers for USERRA violations. A plaintiff in such a case could obtain compensation for lost wages and benefits, and, in the case of willful violations, for liquidated damages in an amount equal to the actual damages plus attorney's fees, expert witness fees, and other litigation costs.