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September 13, 2001

When the National Guard and military reserves are called to duty: implications for employers

In the wake of the Sept. 11 terrorist attacks, some National Guard units have been activated to help with rescue and cleanup efforts. It is also possible that military reserves may be pressed into service for the same purpose. In light of these developments, employers should know the relevant employment laws that spell out how such call-ups will affect employers, employees, and jobs.

A 1994 federal law, the Uniformed Services Employment and Re-mployment Rights Act (USERRA), for example, spells out employees' rights to re-employment if they are absent from work because of service in the uniformed services.

This law, which applies to both public and private employers, specifies that most employees are entitled to re-employment as long as they give advance notice of service (unless that's impossible), have cumulative absences of less than five years, and, in most cases, apply for re-employment.

USERRA also spells out how employees can seek re-employment. Those requirements vary, depending on the length of service. The law also spells out some exceptions to these re-employment rights — for example, in cases of plant closings or jobs that were originally brief and non-recurring.

The law also addresses the positions to which workers are entitled upon re-employment. These provisions vary according to the employee's length of service and disabilities, if any.

The law also addresses questions related to employment benefits. For example, the law specifies that, upon re-employment, employees are entitled to all of the seniority-based benefits they had when uniformed service began, plus any additional benefits they would have accrued had they remained continuously employed. And USERRA requires all health-care plans to provide COBRA-type coverage for up to 18 months.

For determining pension benefits, USERRA requires employers to credit employees with years of service while the employees are on uniformed-service leave.

In practice, many major employers historically have been generous in supporting their employees who are pressed into uniformed service in times of national emergency - for example, by continuing to pay part or all of workers' salaries during uniformed service. In current circumstances, that tradition is likely to continue.