From the Massachusetts Nurse Newsletter
July/August 2006 Edition
By Joe Twarog
Associate Director, Labor Education & Training
Since the United States is still at war, it is useful perhaps to review employee’s rights regarding military leaves of absence given that many registered nurses serve in the military. Many MNA contracts include language addressing military leave.
A typical contract clause addressing military leave is similar to this one found in the Noble Hospital contract:
“The Hospital will comply with the requirements of applicable state and federal laws relating to Nurses who are called to serve in the National Guard or the Armed Forces of the United States. A Nurse who is called for an annual two (2) week training period in the Military Reserve or National Guard will be paid the difference between the military pay and allowance and the Nurse’s basic earnings from the Hospital. Such a Nurse will have the military pay certified by the appropriate Commanding Officer.”
Other contracts have more detail and address longer military service circumstances, as well as benefits and re-employment rights. However, there is a federal statute that addresses these issues.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that protects the employment rights of individuals who voluntarily or involuntarily leave employment to undertake military service or certain types of service in the National Disaster Medical System. It is the statute that defines benefit and re-employment rights for workers who leave work to serve in the military.
Virtually all employers are covered by USERRA, even if they have only one employee. The statute provides protection for employees participating in uniformed services including the Army, Navy, Marines, Air Force, Coast Guard; Reserves, Army and Air National Guard, Commissioned Corps of the Public Health Service, and any other category or individuals designated by the president.
All employees are covered under USERRA, including full-time, part-time, per diem, temporary, probationary and seasonal employees. An individual becomes covered by the act upon notice of hire. There is no waiting period or minimum threshold of time or number of hours (as with the Family and Medical Leave Act) that must be worked before one comes under the provisions of USERRA. So if an individual is hired to work on July 1 and is scheduled to begin work on July 8, but is called up for military duty on July 2 that person is covered under the law. Employees must provide advance written or verbal notice to an employer before leaving employment to perform military service, unless such notice is impossible or precluded by military necessity.
Military leave and benefits
The leave is an unpaid leave under USERRA but, at the employee’s option, can be paid through the use of accrued vacation or other paid leave, or by contractual provision. The employer is not allowed to mandate use of paid leave during the military leave.
USERRA protects an employee’s benefits tied to seniority while on military leave. This means that pay and pension are not affected by the time that an employee is on military leave. Time spent on such a leave is not considered as a break in service for these purposes, and an employee who returns from a military leave is entitled to all the rights and benefits as if she/he had been working continuously during that time period. This means that if during such period the wage rates increased, the returning employee is entitled to that new rate of pay as well as any bonuses and annual step increases that would have occurred. Similarly, for pension purposes, the employee is considered to have worked through the period of the leave.
However, the employee on military leave does not accrue vacation or sick leave time during that period, unless provided for in the contract.
Health Insurance coverage may be continued for up to 18 months if the employee elects for the continuation. If the leave does not exceed 30 days, the employee may not be required to pay more than the employee’s share of the premium (where applicable). But if the leave exceeds 30 days, the employee may be required to pay up to 102 percent of the full premium for continued coverage.
Job security and re-employment
Employees honorably discharged from military service are entitled to reinstatement to their civilian job if the military leave was less than five years in duration. This five-year cap does not apply to the annual two-week training periods that occur for reservists and National Guard members however. If the leave was from one to 90 days in duration, the employer must reinstate the employee as if the leave had not been taken—even if it means displacing another employee who temporarily filled the position. For an employee returning from a military leave of greater than 90 days duration, that person must be returned to a position of like pay, status and seniority. In such cases, employers must make reasonable efforts to train a qualifying employee for that position.
Returning employees must notify the employer of their desire to return to employment. The amount of time for notifying the employer varies depending on how long the leave was.
USERRA prohibits employers from discriminating against any employee or prospective employee because of past, present, or future application for, or membership in, a uniformed service. An employer may not deny an individual: initial employment; re-employment; retention in employment; promotion; or any benefit of employment because of military service.
The U.S. Department of Labor Veterans Employment and Training Service (VETS) is authorized to investigate and resolve complaints of USERRA violations. Violations may also be litigated through the union contract.
Massachusetts law and USERRA
The military leave statute in Massachusetts only protects employees on military leave of 17 days or less. It also excludes temporary employees from coverage. Therefore, USERRA provides greater protections and, as a result, that is the statute that employers must adhere to.