 |
|||||||||||
|
|||||||||||
 |
|
|
KEYWORD:
|
KOSOVO CONFLICT AFFECTSEMPLOYER OBLIGATIONS
Frances King Quick, Partner In April, President Clinton approved a request for more than 30,000 Reserve members to report for active duty in Kosovo. The first call to active duty includes 210 personnel from the 117th Air Refueling Wing of the Air National Guard from Birmingham. Others may follow. If your employees number among the troops called to duty, it will affect your obligations under your benefit plans. The Uniformed Services Employment and Reemployment Rights Act (USERRA) expands federal protections for civilian job rights and benefits for Reserve and Guard units. It is intended to encourage noncareer service in the uniformed services by removing or reducing disadvantages from an employment standpoint largely through benefits protections and reemployment rights. The law applies to voluntary or involuntary duty in the uniformed services of the Army, Navy, Marines, Air Force, and Coast Guard. This includes all Reserve and National Guard components, although it does not apply to state National Guard call-ups for disaster relief, riots, and other local emergencies. USERRA rights are triggered when an employee is called to active duty, active duty for training, inactive duty for training (drills), and any wartime or peacetime periods used to determine fitness for duty. It does not cover employees who are in positions where there is no reasonable expectation that employment will continue indefinitely or for a significant period. Beyond that limitation, the law is pervasive; it applies to virtually every public and private sector employer. Conditions for Eligibility Certain conditions must be met before an employee is eligible for USERRA's protections:
If the employee meets these conditions, USERRA imposes particular requirements on your qualified retirement plans.
Health Insurance USERRA also gives your employees certain health insurance rights. An employee has the right to elect continued health insurance coverage for himself and his dependents during periods of military service. For the first thirty days of training or service, you can require the person to pay only the normal employee share, if any, of the cost of such coverage. For longer military service periods, you may charge the person up to 102% of the entire premium, calculated in the same manner as regular COBRA premiums. If the employee elects coverage, the right to that coverage ends on the day after the deadline to apply for reemployment or eighteen months after the date the employee's absence began, whichever comes first. Even if an employee does not elect continued health coverage during military leave, he is entitled to immediate reinstatement of civilian health insurance coverage upon return to work, including coverage for previously covered dependents. Your health plan cannot impose a waiting period and cannot exclude the returning employee based on pre-existing conditions (other than for those conditions determined by the federal government to be service-connected). Other Benefits To the extent that your company offers non-seniority welfare benefits other than health insurance to employees on furlough or leave of absence, the employer is required to provide those same benefits to an employee on leave for military service. If the employer's treatment of persons on leaves of absence varies according to the kind of leave, for instance, jury duty or educational leave, you should match the most generous form of leave. Advance Notice Employees have to give you advance notice if they are called to military service. The notice may be written or oral, and while the law does not specify the length of advance notice, it should be reasonable given all the circumstances. The notice requirement is only waived where the employee can show that it cannot be given because of "military necessity," or if giving notice is impossible or unreasonable. Whether circumstances constitute military necessity is determined under standards set forth in Department of Defense regulations. Leave Policy Current employees may not be penalized for exercising their rights to take part in any military training. You must grant employees any earned vacation time under established vacation programs or policies, in addition to any necessary leave for military training. National Guard and Reserve members are permitted to attend military training, whether the training is mandatory or voluntary, and whether it is active or inactive duty for training. The timing of training is also protected; you may not require a different schedule. An employee may use annual vacation or personal leave for military service, but he cannot be forced to use his earned leave for military service. Instead, if the employee chooses to save his paid vacation leave, you must allow the military leave of absence, although it can be unpaid leave. Reemployment Rights Former employees have the right to be immediately restored to their jobs when they return, without losing seniority, status, retirement credit, or rate of pay. Depending on the length of service, you will have to place the employee in the same job, or a promoted position if there is some reasonable certainty he would have been promoted without the absence. You may have to make reasonable efforts to refresh or update the employee's skills or to provide training he missed because of his absence. If your efforts are unsuccessful, he is still entitled to the job he left. Employees who serve more than 90 days have the same reemployment rights, except that these employees may also be placed in positions of like seniority, pay and status. Once you rehire a person under USERRA, she may not be discharged, except for cause, for at least 180 days after the date of reemployment. If her service was more than 180 days, she may not be discharged, except for cause, for at least one year after the date of reemployment. Government Resources The United States Department of Labor is responsible for administering USERRA. If you have particular questions about USERRA-protected benefits, you may contact the Veterans' Employment and Training Service (VETS) at the following locations: United States Department of Labor/VETS AL VETS/USDOL: Thomas Karrh, Director
|
||
|
|
