December 2001 Bulletin

When staff is called to active military duty

Rights and responsibilities of employer and employee

By Janice G. Cunningham

In the wake of the tragic events of September 11th, members of our armed forces have been called to duty in the war on terrorism. Often, little notice is given to those called and thus, to their employers.

What do you do when an employee informs you that he or she has been called to report for military duty? Of course, we all want to support our uniformed servicemen and women. We owe a great debt to them for their sacrifices. You also need to do what you can to minimize the disruption to the practice. With some forethought and planning, you can assist your enlisted staff members and effectively handle the void their absence may create.

Responsibilities and rights of employees and employers

In 1994, the federal government enacted a law called the Uniformed Services Employment and Re-employment Rights Act ("USERRA"). The underlying goal of USERRA is to encourage service in the uniformed services while minimizing disruption to persons providing service, their families, employers and the community. The law also prohibits discrimination based on such service and attempts to minimize any disadvantage in career paths of service people as compared with their civilian counterparts.

USERRA affects the entire employment process from hiring through employment during times of active duty and re-employment upon return from active duty. It applies whether the employee is involuntarily called to duty or voluntarily enlists.

It is likely that most military absences at this time will last for more than 180 days. There are different provisions that apply to shorter military absences. If an employee is away from work for more than five years (cumulative, including all prior military absences), the right to be rehired under USERRA may not apply.

This article provides a general overview of USERRA and there may be additional requirements or limitations that apply. It is not intended to give specific legal advice. Consult your health care attorney for guidance in your practice.

When an employee is called to active military duty

When a staff member is called to duty, there are certain things the affected employee and employer must do. First, USERRA requires that the employee give advance verbal or written notice to the employer. However, if it is precluded by military necessity or is unreasonable or impractical under the circumstances, notice is not required.

Under most circumstances, an employee will be able to give you notice, although it may be in some cases less than a week or two. You may not penalize the employee under any lack of notice provisions you may have in employment agreements or personnel manuals so long as he or she has acted reasonably under the circumstances.

Employers may not require employees to use accrued vacation time as part of a military absence. However, if an employee so requests, the employer must pay accrued vacation time at the time of service.

Under USERRA, employers who offer health care coverage to their employees and/or their dependents must allow, at the employee’s option, continued coverage for up to eighteen (18) months during a military absence. The employer may not charge the employee more than 102% of the premium cost.

May you hire replacement staff?

Often practices question whether they can even hire new staff to replace those called to duty. You have a business to run and if you need staff, you should recruit and hire for all open positions. If you expect the employee who is away for military absence is likely to return in less than five years, you may advise the new hire that the position is temporary.

Practices may think it best to try to recruit staff who are not involved in any branch of uniformed services to minimize disruption that would occur if the staff member were called to active duty. USERRA makes it illegal to discriminate against an otherwise qualified candidate based on the fact that he or she: (a) is or ever was a member of a uniformed service, or (b) has or may have an obligation to perform in a uniformed service at some time in the future. Your first and only consideration should be whether or not a candidate is qualified.

Re-employment upon return from active duty

Upon return from a military absence, employees have certain rights regarding re-employment under USERRA. To be eligible for re-employment, the employee may not have been dishonorably discharged. Otherwise, the employer is under no legal duty to re-employ that individual.

The returning employee must also meet notice requirements upon return. Generally, if the military absence was for more than 30 but less than 180 days, the employee must submit an application for re-employment to the employer within 14 days of the last day of service. If the military absence was more than 180 days, the returning employee has 90 days from the completion of service to submit the application.

USERRA also contains specific provisions dealing with returning employees who were injured in the line of duty. The permitted time period for reporting back to the employer may be extended by as long as two years if the returning employee is hospitalized or convalescing.

Assuming there are no exceptions that apply, the employer must rehire the returning employee either in the same position or in one of like seniority, status and pay. The employer may be required to provide reasonable training, if necessary, to make the returning employee qualified for a new position.

Generally, a military absence may not be treated as a lapse in employment for purposes of certain benefits. If the employee would have received any promotions or pay increases had there not been a military absence, those promotions or raises must be granted to the returning employee. The returning employee is eligible for participation in any employer sponsored pension or profit sharing plans upon return. Military absences count toward any waiting period in those plans. There are also specific rules regarding the returning employee’s right to make up voluntary contributions he or she would have made had the military absence not occurred. Further, there are specific rules for employers who make contributions based on what the employee contributes to make up for the time away in military absence.

Consult your health care attorney for specific guidance in your practice.

Exceptions to USERRA

In certain circumstances, employers may not be required to comply with the reemployment provisions of USERRA. As mentioned above, if the employee is dishonorably discharged or fails to make the required application for reemployment in the time provided by USERRA, the employer may not have to rehire the returning employee.

If an employer’s circumstances have changed so much that reemployment is unreasonable or impossible, the employer may not be required to rehire a returning staff member. Further, if certain accommodations needed to allow a returning employee would create an undue hardship on the employer, reemployment may not be required. Finally, reemployment is not required if the returning employee’s position was a brief, non-recurring position, such as temporary staffing.

Planning to minimize disruptions

Begin now to prepare for potential military absences. Identify those staff members who currently participate in uniformed services including any reserve units. Ask staff to please let you know as soon as possible if they are called to active duty.

Cross-train staff now so that if one staff member leaves, the others can fill in until a replacement may be hired. Update your job descriptions and any procedure manuals, especially those that detail procedures for specific job functions. Ask staff to prepare step-by-step instructions for common job duties such as entering charges, posting payments or using your electronic scheduling system.

These are all good business practices anyway, whether or not you have staff members who are likely to be called to active duty.

Don’t forget provider staff. Physicians, physician assistants and nurse practitioners may also be called. Think about how best to cover your patients should you suddenly be short a provider.

Finally, let all staff know that the practice supports their efforts! In this time of national need, we owe them a debt of gratitude.

Janice G. Cunningham, JD, is a health care consultant with The Health Care Group, Inc. and an attorney with Health Care Law Associates, P.C. based in Plymouth, PA.

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