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Military Leave and Employment Protections
Under both state and federal law employees enjoy protections aimed at preventing military service from putting civilian careers at a disadvantage. In particular, the Uniformed Services Employment and Reemployment Rights Act (USERRA):
  1. Prohibits discrimination because of past, present or future service;
  2. Requires accumulation of seniority and pension benefits and limited continuation of health insurance benefits during leave;
  3. Provides for prompt reinstatement following release from service;
  4. Requires training or retraining on job skills and accommodations for those returning with disabilities; and
  5. Provides reemployed service members with temporary protections against discharge, except for cause.
Oregon law also protects employees and job applicants from discrimination because of military service and is interpreted in a manner consistent with similar provisions of USERRA. ORS 659A.082. In addition, Oregon law protects employees who serve in the organized militia when called into active service for the state. ORS 659A.086. 

Note that a separate state law also provides protected leave to the spouse or same-sex domestic partner of a member of the Armed Forces, National Guard or military reserve in regard to deployment and leave from deployment to active duty. ORS 659A.093. See our factsheet on the Oregon Military Family Leave Act for those details.

The following are some of the more frequently asked questions about military leave. 

Q. Which employers are covered by these laws?

A. All employers are covered. In fact, USERRA covers U.S. and U.S.-affiliated employers even when operating outside the US.

Q. Which employees are eligible for USERRA protections?

A. USERRA protections apply to employees who leave employment for the purpose of military training, service or examination. This includes service in all main military branches: Army, Navy, Air Force, Marine Corps and Coast Guard, plus the National Guard and Reserve components of those branches.  It also includes members of the National Disaster Medical System and the Commissioned Corps of the Public Health Service. 

To be eligible for the protections of USERRA, the returning service member must not have been separated from service with a dishonorable or bad conduct discharge or under other than honorable conditions. Dismissal from the military service for commissioned officers under certain situations involving a court-martial or by order of the President in time of war is also disqualifying. Having been dropped from the rolls for absenteeism without authority for more than three months or imprisonment by a civilian court is disqualifying, too.

There are certain limited affirmative defenses to an employer’s obligation to offer reemployment under USERRA. An employer need not offer reemployment if the employer can demonstrate:
  • The position was for a brief, non-recurrent period and there was no reasonable expectation that the employment would continue indefinitely or for a significant period. 
  • It would be impossible, unreasonable or an undue hardship to reemploy the returning service member, such as when there has been a reduction in force. 29 CFR §1002.139.
Note that these defenses apply to reemployment protections only, the remaining discrimination protections regarding past, present or future military service extend to all employees as well as job applicants.

Q. How does military leave impact my employee’s leave banks? 

A. Pay and fringe benefits may not be denied or reduced due to military leave, so an employer may not, for example, require a reservist or National Guard member to use his or her accrued vacation leave time for military training. However, service members are entitled to use any accrued vacation leave or paid time off (PTO) during their service if they choose. 

In addition, public employers (state, county and municipal bodies and any political subdivisions of the state) must provide a paid, protected leave of absence for a single period not to exceed 15 days in any one training year for National Guard and reserve training, so long as the employee has been employed for at least six months preceding the leave. ORS 408.290.

Q. What about benefits?

A. While on military leave, the service member is entitled to continue coverage under a health plan, including dependent care coverage, for up to 24 months from the date military service begins. The right to continue coverage terminates prior to 24 months if the employee fails to timely apply for reemployment after returning from leave. Service members may be required to pay the employee cost, if any, of any funded benefit, just as other employees on leaves of absence are required to pay such costs. For health benefits, the employee may not be required to pay more than the employee’s share if the period of service did not exceed 30 days. If service exceeds 30 days, the employee’s cost cannot exceed 102 percent of the full premium for coverage (the employer’s share plus the employee’s share plus two percent for administrative costs). 

As to pension plans, employers with plans based on seniority must treat the service member as not having a break in service. Military service must be considered service with the employer for vesting and accrual purposes. An employer that participates in a multi-employer plan must notify the plan administrator in writing of the employee’s return from service within 30 days. Different requirements apply to defined benefit plans and defined contribution plans. For non-contributory defined benefit plans, the employee benefit is the same as if the employee were continuously employed. For defined contributory plans, the returning employee is entitled to any accrued benefits only to the extent those contributions are repaid. The employee is allowed but not required to make up missed contributions or elective deferrals. Benefits may differ with such plans because of earnings or losses that occurred during military service before repayment took place. Employers are not required to make their contributions until the employee is reemployed. For plans in which the employee is not required or permitted to contribute, the employer must make its contributions no later than 90 days after reemployment or when contributions are normally due for the year, whichever is later.
  
Q. Can I discharge a veteran during his or her military service? 

A. No. Additionally, once the veteran is reemployed following at least 30 days of service, the employer cannot discharge the veteran except for cause for certain periods of time. If the person’s military service was for 31-180 days, the employee may not be discharged, except for cause, for 180 days after reemployment; if the service was for more than 180 days the employee may not be discharged, except for cause, within one year.

Q. How long can an employee take military leave and still be eligible for reemployment?

A. Typically, an employee may serve for a cumulative period of up to five years and retain reemployment rights with the employer. There are limited exceptions for such situations as involuntary duty, obligated service or captivity. 

Note that there is no time limit on the amount of time reservists and National Guard members may spend in required training.

Q. What must the returning veteran do to obtain reemployment rights?

A. Veterans and reservists returning from active duty must notify their former employers of their intention to resume their former jobs and be available to return to work within certain time limits. For a period of service of 1-30 days, returning employees must report back on the next scheduled work day after safe travel and eight hours of rest. For service of 31-180 days, the service member must report back within 14 days after completion of service. For service of 181 days or more, the employee must report back within 90 days after completion of service. No particular form of notification is required by the law. 
  
Q. Are employers entitled to documentation from the returning service member to determine eligibility for the protections of the law?

A. Yes, employers may request documentation for a period of service that exceeds 30 days. Documents that satisfy such requests include Department of Defense forms DD214, DD215 and NGB 22, duty orders indicating completion of qualifying service, a letter from the commanding officer of a Personnel Support Activity or comparable authority, a certificate of completion from military training school, or other discharge certificate or documents showing the length and character of service. 

Q. What are veterans’ or reservists’ reemployment rights? 

A. The veteran or reservist has a right to reemployment in the same position, if it exists, or if it does not, a position of like seniority, status and pay, as if the employee had remained on the job instead of performing military service. There is also an “escalator” principle in effect here that requires the returning service member to be reemployed in the position the person would have occupied, with reasonable certainty, if the person had remained continuously employed rather than taking military leave. 

Additionally, if the employee would have received, say, a 5 percent pay increase based on time at the job, the employee would need to receive the raise upon reemployment, since military service is counted as if the employee never left the job. 

If the returning service member has a disability that was incurred or aggravated while in military service, there is a three-part analysis that applies to reemployment. First, the employer must make reasonable efforts to accommodate a disability so that the person may perform the duties of the reemployment position. Second, if despite those efforts, the person is not qualified for the position due to the disability, the person must be reemployed in a position of equivalent seniority, status and pay to the escalator position. The employee must be qualified to perform the duties of this position or be able to become qualified with reasonable efforts by the employer. Third, if the employee cannot become qualified, the person must be employed in a position that most nearly approximates the position in terms of seniority, status and pay. This may be a higher or lower position, and may result in promotion, demotion, layoff or transfer, depending on the circumstances. 

Q. Does the employer have to create a position for the returning veteran? 

A. No. An employer is not required to create a new position in order to reemploy the veteran, if an employer’s circumstances have changed so that reemployment would be impossible or unreasonable, such as a reduction of the work force. 29 CFR §1002.139. The burden is on the employer to prove the change of circumstances. If the job still exists, however, the employer must give the job back to the returning veteran even if a replacement has been hired. The courts have held that the employer should reinstate the veteran or reservist, even if the replacement employee may be disadvantaged. 

Q. Can I refuse to hire someone who is a reservist or member of the National Guard?

A. No. The refusal to hire someone because of recurring military service responsibilities or discrimination in terms, conditions, privileges or benefits of employment on account of such service is an unlawful employment practice. 

Q. Whom should I contact if I need more information? 

A. Contact the U.S. Department of Labor, Veterans’ Employment and Training Program (VETS), Employment Division Central Office, 875 Union, NE, Room 303, Salem, OR 97311-0100 or call 503-947-1492. Additional information including mediation services is available at https://www.esgr.mil/USERRA or by calling their ombudsman at 800-336-4590, Option 1. Note that the ombudsman will provide mediation services and act as a neutral liaison to help resolve disputes between service members and employers.

August 2019

DISCLAIMER 
Nothing on this website is intended as legal advice.  Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations.  This communication is not an agency order.  If you need legal advice, please consult an attorney.  We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current.  We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
 
TECHNICAL ASSISTANCE FOR EMPLOYERS
800 NE OREGON STREET, STE 1045
PORTLAND, OR  97232
971-673-0824
 
 
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