Employee Military Leave & Reemployment Rights

County officers and employees who are called to active military duty are entitled to military leave and reemployment rights and benefits under both state and federal law upon their return from active duty. County employers must provide the benefits mandated by these statutory provisions to returning employees. The rights and benefits provided for in the two statutes are similar but not identical. While this spotlight attempts to address the major aspects of both statutes, and should be read in its entirety, it does not address every facet of these laws. The purpose of this spotlight is to make county employers aware that these statutes exist and impose certain obligations on employers of military service members called to active duty.
 

*** Employment discrimination because of past, current, or future military service is prohibited.

*** Employers are required to grant employees a leave of absence for the period necessary to perform military service. Employees cannot be required to use accrued leave or vacation time, however, if the employee requests annual leave or paid vacation the employer must allow it.

*** Employees returning from military service are entitled to restoration of employment with seniority, status, and pay rate as if continuously employed.

*** Employees on leave of absence for military service do not continue to accumulate vacation or sick leave. However, if the employer allows accrual of vacation or sick leave for employees who are on furlough or leave of absence, then an employee who is absent for military service is entitled to the same benefit.

*** Employees on military leave of absence are entitled to elect continued health insurance benefits for up to eighteen months and may be required to pay the employee cost of such benefits. And, an employee may be required to pay the employee cost of any other continued funded benefit to the extent other employees on furlough or leave of absence are required to do so.

*** State law grants paid military leave, for up to fifteen working days in any one calendar year, to county officers and employees while they are performing military service. After the fifteen working days of full compensation, any public employer may provide partial compensation to its employees while under competent orders.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was signed into law on October 13, 1994, and was amended in 1996, 1998 and 2000. 38 U.S.C. §§ 4301 - 4333. USERRA significantly strengthens and expands the employment and reemployment rights of all uniformed service members.
Under USERRA employment discrimination because of past, current, or future military obligations is prohibited. The ban is broad, extending to most areas of employment, including: hiring, promotion, reemployment, termination, and benefits. 38 U.S.C. § 4311(a). USERRA does not apply to the state call-up of National Guardsmen. Although USERRA applies to National Guard duty assignments under federal authority, it does not apply to National Guardsmen called to duty under state authority, such as disaster relief or riot control. State call-up of National Guardsmen is addressed by state law. See T.C.A. §§ 8-33-101 et seq., and 58-1-106.

Under USERRA, reemployment rights extend to persons who have been absent from a position of employment because of “service in the uniformed services.” USERRA applies to persons who perform duty, voluntarily or involuntarily, in the “uniformed services.” 38 U.S.C. § 4303 (13). The “uniformed services” include the Army National Guard and Air National Guard, in addition to the Army, Navy, Marine Corps, Air Force, Coast Guard, and the reserve components of each of these services. 38 U.S.C. § 4303 (16).

Any person whose absence from a position of employment is necessitated by reason of service in the uniformed services is entitled to USERRA reemployment rights and benefits if the following criteria are met:

(1) The person must have given notice to the employer that he or she was leaving the job for service in the uniformed services, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable [38 U.S.C. § 4312 (a)(1) and (b)];

(2) The period of service must not have exceeded five years [38 U.S.C. § 4312 (a)(2) and (c)];

(3) The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment [38 U.S.C. § 4312 (a)(3) and (e)]; and

(4) The person must not have been released from service under dishonorable or other punitive conditions [38 U.S.C. § 4304].

Upon the completion of a period of service in the uniformed services the returning employee must notify the employer of his/her intent to return to work. Under the Act, the time limits for returning to work are as follows:

(1) Less than 31 days service: The employee must report to the employer not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence; or as soon as possible after the expiration of the eight-hour period referred to above, if reporting within the period referred to above is impossible or unreasonable through no fault of the person. 38 U.S.C. § 4312 (e)(1)(A).

(2) 31 to 180 days: The employee must submit an application for reemployment with the employer not later than 14 days after the completion of the period of service or if submitting such application within such period is impossible or unreasonable through no fault of the person, the next first full calendar day when submission of such application becomes possible. 38 U.S.C. § 4312 (e)(1)(C).

(3) 181 days or more: The employee must submit an application for reemployment with the employer not later than 90 days after the completion of the period of service. 38 U.S.C. § 4312 (e)(1)(D).

(4) Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing. 38 U.S.C. § 4312 (e)(2)(A).

Pursuant to USERRA, returning employees must be “promptly reemployed.” 38 U.S.C. § 4313 (a). The position into which a returning employee is reinstated is determined by priority, based on the length of military service. The rules are as follows:

(1) Less than 91 days service:

(A) The employee must be reemployed in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, the duties of which the person is qualified to perform; or

(B) The employee must be reemployed in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, only if the person is not qualified to perform the duties of the position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person. 38 U.S.C. § 4313 (a)(1)(A) and (B).

(2) 91 days or more:

(A) The employee must be reemployed in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the person is qualified to perform; or

(B) The employee must be reemployed in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status and pay, the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person. 38 U.S.C. § 4313 (a)(2)(A) and (B).

(3) Disability: In the case of a person who has a disability incurred in, or aggravated during, such service, and who (after reasonable efforts by the employer to accommodate the disability) is not qualified due to such disability to be employed in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service –

(A) The person must be placed in any other position which is equivalent in seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer; or

(B) If not employed under subparagraph (A), the person must be placed in a position which is the nearest approximation to a position referred to in subparagraph (A) in terms of seniority, status, and pay consistent with circumstances of such person's case. 38 U.S.C. § 4313 (a)(3)(A) and (B).

A reemployed employee is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed. 38 U.S.C. § 4316 (a). A reemployed employee cannot be discharged, except for cause, within one (1) year after the date of such reemployment, if the person's period of service before the reemployment was more than 180 days; or within 180 days after the date of such reemployment, if the person’s period of service before the reemployment was more than 30 days but less than 181 days. 38 U.S.C. § 4316 (c).

Under USERRA, an employee who is absent from a position of employment due to his/her service in the uniformed services is deemed to be on furlough or leave of absence while performing such service and is entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service. 38 U.S.C. § 4316 (b)(1)(A) and (B). However, an employee deemed to be on furlough or leave of absence under USERRA shall not be entitled to any benefits to which the person would not otherwise be entitled if the person had remained continuously employed. And, such employee may be required to pay the employee cost, if any, of any continued funded benefit to the extent other employees on furlough or leave of absence are so required. 38 U.S.C. § 4316 (b)(3) and (b)(4).

Under the Act, an employee who is performing military service is permitted, upon request of that person, to use any vacation, annual, or similar leave with pay accrued by the person before the commencement of such military service. An employer may not require an employee to use vacation, annual, or similar leave while the employee is performing his/her period of military service. 38 U.S.C. § 4316 (d). Like the state statute, USERRA does not provide for the accumulation of vacation or sick leave while a covered employee is on military leave. However, if the employer allows accrual of vacation or sick leave for employees who are on furlough or leave of absence, then an employee having similar seniority, status, and pay who is absent for military service is entitled to the same benefit.

USERRA provides for the continuation of heath insurance benefits. An employee who is performing his/her military service may elect to continue such coverage. The maximum period of coverage of a person and the person’s dependents under such an election is eighteen months. Pursuant to the Act, an employee who elects to continue health-plan coverage may be required to pay not more than 102 percent of the full premium under the plan. However, if the employee’s military service is for less than 31 days, such person may not be required to pay more than the employee share, if any, for such coverage. 38 U.S.C. § 4317 (a)(1) and (2). USERRA also protects pension plan benefits that accrued during military service. 38 U.S.C. § 4318.

A non-technical resource guide to USERRA may be downloaded from the following web site: http://www.dol.gov/vets/whatsnew/uguide.pdf

Additional assistance is available from ESGR (Employer Support of the Guard and Reserve). Part of ESGR’s mission is to assist in preventing, resolving, or reducing employer and/or employee problems and misunderstandings that result from National Guard or Reserve membership, training, or duty requirements through information services and informal mediation. To contact an ESGR representative call (615) 313-0657. http://www.esgr.org/default.asp

Under state law it is a Class E felony for any person, firm or corporation to refuse employment to any person for the sole reason that the person is a member of the Tennessee national guard or to terminate the employment of any such person for such reason or because of absence from place of employment while attending any prescribed drill, including annual field training. T.C.A. § 58-1-604.

Tennessee Code Annotated section 8-33-101 et seq. addresses employees in military service. Pursuant to T.C.A. § 8-33-109, all county officers and employees who are, or may become, members of any reserve component of the armed forces of the United States, including members of the Tennessee army and air national guard, are entitled to a leave of absence from their jobs, without loss of time, pay, regular leave or vacation, impairment of efficiency rating, or any other rights or benefits to which they are otherwise entitled, for all periods of military service during which they are engaged in the performance of duty or training in the service of this State, or of the United States, under competent orders. When performing his or her military service, the officer or employee is entitled to receive his or her salary or compensation for up to, but not exceeding, fifteen working days in any one calendar year. In 2003, this statute was amended to allow for partial pay of public employees. After the fifteen working days of full compensation, any public employer may provide partial compensation to its employees while under competent orders.

In addition to the provisions of T.C.A. § 8-33-109, sheriff’s deputies, police officers, and firefighters, who served or serve on active duty in the armed forces of the United States during Operation Enduring Freedom or any other period of armed conflict prescribed by presidential proclamation or federal law which occurs following the period involving Operation Enduring Freedom, are entitled to receive the cash salary supplement provided pursuant to T.C.A. §§ 38-8-111 and 4-24-202, respectively, if their military service prevented or prevents them from attending an in-service training program.

It is important to note that, while T.C.A. § 8-33-109 grants paid military leave, for up to fifteen working days in any one calendar year, to county officers and employees while they are performing military service, the Attorney General has opined that this statute does not provide for the accumulation of vacation or sick leave while a covered person is on military leave. See Op. Tenn. Atty. Gen. No. 92-12 (February 19, 1992). Rather, the purpose of the statute is to protect the rights and benefits that the military member has already earned, such as seniority and accrued leave time.

Tennessee Code Annotated section 8-33-102 provides reemployment rights after discharge from military service. County employees who leave a position in order to perform military duty must apply for reemployment within ninety days after being released or discharged from military duty. An employee who makes the proper application, and was not dishonorably discharged, shall, “[i]f still physically qualified to perform the duties of such position, be restored to such position if it exists and is not held by a person with greater seniority, otherwise to a position of like seniority, status and pay.” T.C.A. § 8-33-102(1). A county employee who is not qualified to perform the duties of his or her prior position due to a disability sustained during military service, “shall be placed in such other position, the duties of which such employee is qualified to perform as will provide the employee like seniority, status and pay, or the nearest approximation thereof consistent with the circumstances of the case.” T.C.A. § 8-33-102(2).

Tennessee Code Annotated section 8-33-104 provides additional rights after reemployment following discharge from military service. Any person who is restored to a position in accordance with the Act is considered as having been on furlough or leave of absence during the period of military duty. A restored employee cannot be discharged without cause within one year after restoration. Furthermore, the employee is entitled to be restored without loss of seniority (including, upon promotion or other advancement following completion of any period of employment required therefor, a seniority date in the advanced position which will place the person ahead of all persons previously junior to the person who advanced to the position during the absence in armed forces). Upon reinstatement, the employee is also entitled to participate in insurance (including retirement, pension plans, and medical insurance) and other benefits dependent on length of employment, including vacation privilege and severance pay. The employee is protected against reduction in seniority, status, or pay during employment, except as such reduction may be made for all employees whose employment situations are similar.” T.C.A. § 8-33-104.

The University of Tennessee does not discriminate on the basis of race, sex, color, religion, national origin, age, disability, or veteran status in provision of educational programs and services or employment opportunities and benefits. This policy extends to both employment by and admission to The University.