The following federal information applies to reemployment on or after December 12, 1994.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a reemployment law. Once a member
qualifies for reemployment, the member is entitled to the applicable retirement benefits provided under Oregon
Administrative Rules 459-011-0100 (PERS), 459-011-0110 (PERS), 459-075-0100 (OPSRP), and 459-080-0100 (OPSRP).
The first step an employer must take is to determine whether the returning employee is entitled to reemployment
under USERRA.
Determining the right to reemployment is the employer’s responsibility.
Who is eligible for reemployment under USERRA?
USERRA provides reemployment rights to members who performed service in the uniformed services. “Uniformed services”
means the performance of duty on a voluntary or involuntary basis in a uniformed service, including:
- Active duty.
- Active duty for training.
- Initial active duty for training.
- Inactive duty training.
- Full-time National Guard duty.
- Absence from work for an examination to determine a person’s fitness for any of the above types of duty,
funeral honors duty performed by National Guard or reserve members.
OR
- Duty performed by intermittent disaster response personnel for the Public Health Service and approved training
to prepare for such service.
The “uniformed services” consist of:
- Army, Navy, Marine Corps, Air Force, Space Force, or Coast Guard.
- Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, Space Force Reserve, or Coast Guard
Reserve.
- Army National Guard or Air National Guard.
- Commissioned Corps of the Public Health Service.
- Commissioned Corps of the National Oceanic and Atmospheric Administration.
OR
- Any other category of persons designated by the president in time of war or emergency.
There are many federal requirements to becoming qualified for reemployment rights under USERRA. Read more about the
general steps for eligibility below.
Exceptions to reemployment
Changed circumstances
Reemployment of a person is excused if an employer’s circumstances have changed so much that reemployment of the
person would be impossible or unreasonable. A reduction-in-force that would have included the person would be an
example.
Undue hardship
Employers are excused from making efforts to qualify returning service members or from accommodating individuals
with service-connected disabilities when doing so would be of such difficulty or expense as to cause “undue
hardship.”
Forfeiture of rights
If, prior to leaving for military service, an employee knowingly provides clear written notice of an intent not to
return to work after military service, the employee waives entitlement to leave-of-absence rights and benefits not
based on seniority.
At the time of providing the notice, the employee must be aware of the specific rights and benefits to be lost. If
the employee lacks that awareness or is otherwise coerced, the waiver will be ineffective.
Employees who file a notice of intent not to return can waive only leave-of-absence rights and benefits. They cannot
surrender other rights and benefits that a person would be entitled to under the law, particularly reemployment
rights.
Additional rights of reemployed persons
Departing service members must be treated as if they are on a leave of absence. Consequently, while they are away
they must be entitled to participate in any rights and benefits not based on seniority that are available to
employees on nonmilitary leaves of absence, whether paid or unpaid. If there is a variation among different types of
non-military leaves of absence, the service member is entitled to the most favorable treatment so long as the
non-military leave is comparable. For example, a three-day bereavement leave is not comparable to a two-year period
of active duty.
The returning employees shall be entitled not only to non-seniority rights and benefits available at the time they
left for military service, but also those that became effective during their service.
Disclaimer
This USERRA guide is intended to be a non-technical resource for informational purposes only. Its contents are not
legally binding nor should it be considered as a substitute for the language of the federal and state statutes or
the PERS and OPSRP administrative rules.