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USERRA reinstatement requirements following military leave

by on
in Employment Law,FMLA Guidelines,Human Resources

Q. When a manager takes an extended military leave of absence and I am forced to hire a replacement out of business necessity, am I still required to reinstate the manager upon his or her return to work?

A. The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides specific reemployment rights to veterans.

Under USERRA, there are time limits for returning to work that are based on the duration of the employee’s military service.

If the service is for less than 31 days, the worker must report to work by the beginning of the first regularly scheduled workday eight hours after he or she returns home from military leave. In this situation, the individual is not required to apply for reemployment.

If the service is from 31 to 180 days, the worker must submit an employment application for employment no later than 14 days after completion of the service. However, if it’s impossible or unreasonable for the worker to meet this deadline, the worker is permitted to submit the application as soon as possible.

If service is for 181 or more days, an application for reemployment must be submitted no later than 90 days after completion of the military service.

All of these reporting or application deadlines may be extended by up to two years for workers who are hospitalized or convalescing.

Military service duration affects reinstatement rights as well. If the military service is for 90 days or less, a worker is entitled to the position that he or she would have occupied if his or her employment had not been interrupted—as long as the worker is qualified to perform the duties. If the employee is not qualified for that job, he or she may be placed in the position held before beginning military service.

After military service of more than 90 days, an employee must be placed in the position that he or she would have occupied if his or her employment had not been interrupted or an equivalent position—assuming the worker is qualified for that position. If the worker cannot perform these duties, he or she must be placed in the same or equivalent position held when military leave began.

Under USERRA, the employer is entitled to verification of the worker’s military service. If an individual is absent for 31 days or more, the employer may request documentation establishing his or her eligibility for reemployment. The employer may request documentation that establishes that: (1) the worker’s application for reemployment is timely, (2) the employee has not exceeded the five-year absence limitation and (3) the worker’s separation from service was under honorable conditions.

An employer may only deny reemployment under very limited circumstances. An employer is not required to reemploy a worker if the employer’s circumstances have changed so much that reemployment is impossible or unreasonable, or if it would impose an undue hardship on the employer. Generally, these defenses are very limited. For instance, reinstatement may not be required if it would result in the creation of a useless job, the employer experienced a work force reduction or the worker is not qualified for the position (even after reasonable efforts have been made to qualify the person for the job).

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