2014 Annual Convention. USERRA Re-Employment Rights of the Military

Transcription

1 2014 Annual Convention USERRA Re-Employment Rights of the Military 1.0 General CLE Hour April 30 May 2, 2014 Columbus

2 Featured Speaker Ryan M. Martin Taft Stettinius & Hollister LLP Cincinnati, Ohio Mr. Martin received his undergraduate degree from the University of North Carolina and his juris doctorate from the University of Cincinnati College of Law. His professional memberships include the American Bar Association (Labor and Employment Law Section) and the Cincinnati Bar Association (Executive Board, Young Lawyers Section). Mr. Martin is an associate in the labor and employment department of his firm. He counsels and represents employers in all aspects of labor and employment law, including litigation involving discrimination, harassment, retaliatory discharge, wrongful discharge, wage and hour matters, ERISA matters, class actions, and trade secret and noncompetition agreements for employers in federal and state courts. Mr. Martin is also experienced in public records and open meetings litigation. Prior to joining his firm, he served as a judicial extern for the Honorable Sandra S. Beckwith, Chief Judge of the U.S. District Court for the Southern District of Ohio. For additional information, please visit

3 Reemployment Rights of the Military (USERRA) Ryan M. Martin Taft Stettinius & Hollister LLP Cincinnati, Ohio UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 In 1994, Congress enacted the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C , (USERRA or the Act) to encourage civilian participation in military service by minimizing the impact of that service on civilian careers. A. Purpose. Congress enacted USERRA for several reasons, including: 1. To encourage civilian participation in the uniformed services by minimizing the impact of uniformed service on civilian careers and employment; 2. To minimize disruption to the lives of persons performing service in uniformed services, their employers, fellow employees and communities by providing for prompt reemployment of the service member upon completion of military service; and 3. To prohibit discrimination against and harassment of persons because of their service in the uniformed services. Section 4301 of USERRA. B. Preemption. 1. USERRA does not diminish, nullify or supersede any federal, state or local law, contract, or other agreement that is more beneficial than, or in addition to, a right or benefit provided under USERRA. Reemployment Rights of the Military (USERRA) 1

4 2. USERRA does, however, supersede any state or local law or agreement that reduces or eliminates any right or benefit provided by the Act. Section 4302 of USERRA. C. Employers covered. USERRA applies to virtually all employers, including any person or entity that pays salary or wages for work performed or has control over employment opportunities, such as: 1. Private employers of any size; 2. Persons or entities to whom an employer has delegated the performance of employment-related responsibilities; 3. The federal government and its agencies; 4. State and local governments and their agencies; 5. Any successor-in-interest to an employer; and 6. A person or entity that has denied initial employment in violation of the Act. Section 4303(4) of USERRA. FOUR CENTRAL OBLIGATIONS OF EMPLOYERS UNDER USERRA A. Nondiscrimination obligations. Do not discriminate against a covered person in any employment action because of the person s uniformed service. B. Anti-retaliation obligations. Do not take any adverse action against any person because of the person s involvement in protecting the USERRA rights of a covered person. C. Obligations during military leave. Provide continuation of health insurance to employees on military leave, and otherwise treat them the same as employees on any other kind of paid or unpaid leave of absence. D. Reemployment obligations. 1. Reemploy returning uniformed service persons as required by the Act. 2. Discharge only for cause for a period of time. 3. Restore rights and benefits of employment. 2 Reemployment Rights of the Military (USERRA)

5 NONDISCRIMINATION OBLIGATIONS USERRA prohibits employers from denying any of the following rights to protected persons on the basis of the person s membership in the uniformed services or the person s application for membership, performance of uniformed service or application for performance of service, or any obligation to perform uniformed service: A. Initial employment; B. Reemployment; C. Retention in employment; D. Promotion; or E. Any benefit of employment. Protected persons include anyone who: A. Is a member of a B. Applies to be a member of a C. Performs D. Has performed E. Applies to perform or F. Has an obligation to perform a service in a uniformed service. Service in the Uniformed Services means the performance of duty on a voluntary or involuntary basis in the uniformed services under competent authority and includes: A. Active duty; B. Active duty for training; C. Initial active duty for training; D. Inactive duty training; E. full-time National Guard duty (unless called up by a state); Reemployment Rights of the Military (USERRA) 3

6 F. Absence for a fitness examination; and G. Funeral honors duty performed by National Guard or Reserve members. Uniformed Services under USERRA include the following: A. The Armed Forces (Army, Navy, Marines, Air Force and Coast Guard). B. The Reserve Units of each branch of the Armed Forces (Army Reserves, Navy Reserves, Air Force Reserves and Coast Guard Reserves). C. The Army National Guard and Air National Guard, when engaged in active duty for training, inactive duty training, or full-time National Guard duty. D. The Commissioned Corps of the Public Health Service. E. Any other category of persons designated by the president in time of war or national emergency. Sections 4303(13), 4303(16), and 4311(a) of USERRA. ANTI-RETALIATION OBLIGATIONS USERRA also prohibits an employer from discriminating against or taking any adverse employment action against any person in any position (including persons who have not performed service in the uniformed services ) because the person: A. Took action to enforce a USERRA protection afforded any person; B. Testified or otherwise made a statement in, or in connection with, any USERRA enforcement proceeding; C. Assisted or otherwise participated in an investigation under USERRA; or D. Exercised a right provided by USERRA. Section 4311(c) of USERRA. Termination of all USERRA benefits. A person s entitlement to benefits under USERRA terminates upon the occurrence of any of the following events: A. Separation from uniformed service with a dishonorable or bad conduct discharge; B. Separation from uniformed service under other than honorable conditions, according to regulations of the respective military branch; 4 Reemployment Rights of the Military (USERRA)

7 C. Dismissal of a commissioned officer by court martial or by order of the President in time of war; or D. Dropping of an individual from the rolls because the individual has been absent without authority for more than three months or because the individual has been imprisoned by a civilian court. Section 4304 of USERRA EMPLOYER OBLIGATIONS DURING MILITARY LEAVE A. Preconditions for USERRA protection during leave. In general, a service member is entitled to the protections of USERRA during a military leave if the service member satisfies the following criteria: 1. The service member held a covered civilian job just prior to the military leave; 2. The service member or an appropriate military officer gave advance written or verbal notice of the military service to the employer (unless the giving of notice was precluded by military necessity (as determined pursuant to regulations of the Secretary of Defense) or was otherwise impossible or unreasonable); and 3. The cumulative length of the military leave absence and all previous absences from a position of employment with that employer does not exceed five years. The following service is excluded, however, from calculating the five-year limit: a. Service that is required beyond five years to complete an initial period of obligated service; b. Service from which a person is unable to obtain a release within the five-year period, through no fault of the person; c. Required training for reservists and National Guard members, such as the two-week annual training and monthly weekend drills; d. Service under an involuntary order or retention on active duty during war, a national or domestic emergency or a national security situation; e. Federal service by members of the National Guard when called into action by the President to suppress an insurrection, repel an invasion, or execute federal laws; f. Active duty (other than for training) by volunteers supporting operational missions for which Selected Reservists have been ordered to active duty without their consent, such as Haiti, Bosnia and Iraq; and Reemployment Rights of the Military (USERRA) 5

8 g. Service by volunteers who are ordered to active duty in support of a critical mission or requirement in times other than war or national emergency when no involuntary call up is in effect. (The Secretary of military branch designates an operation as a critical mission or requirement. ) Section 4312 of USERRA. B. Forfeiture of USERRA rights during leave. 1. If prior to going on a military leave an employee knowingly provides written notice of his/her intent not to return to employment after completion of the military service, then the employer can cease providing benefits during the leave. 2. The employer has the burden of establishing that the employee knowingly and voluntarily provided clear written notice of his/her intent not to return to employment and, in doing so, was aware of the specific rights and benefits which would be lost. 3. Although by giving notice the military service person forfeits his/her rights to certain benefits during the military leave, the person still has all of the reemployment rights provided under the Act at the end of the leave. Section 4316 of USERRA. C. Continuation of health insurance during leave. If a service member or the service member s dependents have group health plan coverage from the service member s employer before military leave, they may continue the coverage during the military leave if they wish. This continuation coverage requirement applies to group health plans that provide medical, dental or vision care through traditional indemnity agreements, HMOs, or PPOs, whether they are funded through insurance or a self-insured program and to pre-tax payment of health insurance premiums and health reimbursement accounts under cafeteria plans. This coverage obligation applies even if the employer is not covered by COBRA. (Government employers and employers with fewer than 20 employees are exempt from COBRA.) 1. Period of coverage. The minimum period of continuation coverage is the lesser of: a. The 18-month period beginning on the date on which the person s absence begins; or b. The day after the day on which the person fails to apply for or return to a position of employment as required by USERRA. 6 Reemployment Rights of the Military (USERRA)

9 2. Premiums. a. For the first 30 days of service, the person may not be required to pay more than the normal employee share, if any, for health plan coverage. b. For coverage after 30 days, the person may be required to pay up to 102 percent of the full premium for health plan coverage (same as COBRA). The employee and dependents become covered under military health coverage (TRICARE) after 30 days of active duty. Section 4317 of USERRA 1. COBRA and USERRA. Uniformed services leave will usually constitute a qualifying event under COBRA, entitling affected employees and dependents to notice of their COBRA rights. Employers should give employees and dependents notice of COBRA rights to continuation coverage at the beginning of the uniformed services leave. Although there is no requirement that an employer give notice of the right to continuation coverage under USERRA, some form of general notice is recommended. The 18-month continuation coverage periods for USERRA and COBRA run concurrently starting on the day the service member left employment. Only one premium of 102 percent is required to maintain concurrent COBRA and USERRA coverage. The employer cannot terminate COBRA coverage when the employee and dependents become covered under military TRICARE coverage. 2. Cafeteria plans. The USERRA health plan continuation requirements also apply to cafeteria plans which provide for pre-tax payment of group health insurance premiums and those which provide for reimbursement on a pre-tax basis of medical expenses which are not covered by insurance (sometimes called flex plans or health reimbursement accounts). Neither 125 of the Code, nor the regulations pursuant to that section discuss expressly the impact of USERRA on a cafeteria plan. However, IRS officials have said informally that rules similar to the FMLA rules should apply to cafeteria plan elections for purposes of USERRA. This means that employees on a paid military leave must be permitted to continue to pay for their group health coverage during their leave in the same manner as before the leave (pre-tax or post-tax), and those on unpaid military leave must be permitted to either pre-pay the health insurance premiums out of pre-leave income on a pre-tax basis, or pay on a post-tax basis during the leave, or make catch-up contributions on a pre-tax basis after the leave. Reemployment Rights of the Military (USERRA) 7

10 D. Other employer obligations while employee on leave. 1. While away on military leave, an employee is to be treated as if he/she were on any other kind of furlough or leave of absence. 2. The employee is entitled to have the same rights and benefits of employment, not based on seniority, as are provided to employees of similar seniority, status, and pay who are on paid or unpaid non-military furloughs or leaves of absence. 3. The benefits to be provided are those in effect when the leave begins. However, the benefits must be adjusted for changes in benefits up or down which are otherwise made during the military leave. 4. A person on furlough or leave is not entitled to any benefits to which he or she would not otherwise have been entitled if the person had remained continuously employed. 5. An employer can require the person to pay the employee cost, if any, of any funded benefit continued under USERRA, to the extent other employees on furlough or leave of absence are so required. 6. An employee must be permitted, upon request, to use accrued vacation, annual or similar paid leave during the period of service. The employer cannot, however, require the employee to use paid leave. Section 4316 of USERRA. REEMPLOYMENT RIGHTS A. Additional Pre-Conditions for USERRA Reemployment Rights The service member is entitled to reemployment if the service member satisfies the criteria for protection during leave set out above, plus the following two additional criteria: 1. The service member reports to or submits an application for reemployment to the employer within a specified time; and 2. If the leave was for more than 30 days or the service member is hospitalized or recovering from an illness or injury incurred in or aggravated during leave in the uniformed services, the service member provides documentation (if it is readily available) to the employer, upon request, demonstrating that: (a) the person s reapplication for employment is timely, (b) the person has not exceeded the five-year service limitation, and (c) the person s separation from the uniformed services was not disqualifying. 8 Reemployment Rights of the Military (USERRA)

11 B. Exceptions to right to reemployment. An employer is not required to reemploy a person if: 1. The position that the person leaves in order to serve in the uniformed services is for a brief, non-recurrent period, and there is no reasonable expectation that the employment will continue indefinitely or for a significant period of time; 2. The employer s circumstances have so changed as to make reemployment impossible or unreasonable; e.g., a reduction in force that would have included the person; or 3. The accommodation, training or effort required to qualify the person to fill any reemployment position for which he/she is eligible under USERRA would impose an undue hardship on the employer. Note: the employer has the burden of establishing all of these exceptions. Sections 4312 (a)(3), 4312(d), and 4312(f) of USERRA. C. When must an employee report back to work? The duration of a person s service determines when that person must report back to work. Generally, those time frames are as follows: 1. Service of 1 to 30 days (or a fitness for duty examination): The employee must report to work by the beginning of the first full regularly scheduled workday after he or she returns directly home safely and completes an eight-hour rest period. 2. Service of 31 days to 180 days: The employee must submit an application for reemployment within 14 days after completion of service, or the next business day if the employer is not open for business on the 14 th day. 3. Service of more than 180 days: The employee must submit an application for reemployment within 90 days after completion of service, or on the next business day if the employer is not open for business on the 90 th day. In all of the above cases, if compliance with the time limits becomes impossible or unreasonable through no fault of the employee, the employee must submit an application as soon as possible after the deadline. Reemployment Rights of the Military (USERRA) 9

12 Reporting and application deadlines are extended for up to two years for persons who are hospitalized or recovering from an illness or injury incurred in or aggravated during uniformed service. This two-year period is further extended by the minimum time required to accommodate circumstances beyond the person s control which make reporting within the period impossible or unreasonable. Note: if a person fails to timely report back to work, the person does not forfeit all rights to reemployment and other benefits, but is subject to the employer s general rules and policies governing unexcused absences. Section 4312(e) of USERRA. REEMPLOYMENT POSITIONS Generally, persons returning from military service ( Returning Service Member or RSM ) must be promptly reemployed. Employers generally must perform a three-part analysis to determine the position in which the RSM must be reemployed. A. If the uniformed service was less than 91 days: 1. The employer must reinstate the RSM to the position the RSM would have held if the RSM had been continually employed, if the RSM is qualified to perform the duties of the position or can become qualified by reasonable efforts of the employer ( escalator principle ) 2. If the RSM is not qualified to perform that position after reasonable efforts by the employer to qualify the person, the RSM must be reinstated to the position the RSM held on the date the uniformed service began. 3. If the RSM cannot qualify for either of the positions noted above after reasonable efforts by the employer to qualify the person, the RSM must be reinstated to a position which the person is able to perform that is the nearest approximation to the above-referenced positions, with full seniority. Note: With respect to the first two positions above, employers cannot offer other jobs of equivalent seniority, status and pay. The job offered must be the exact job that the person would have held had they not taken a military leave (including any change due to promotions or reassignments that would have occurred had the person been continuously employed) or the exact job they left. B. If the uniformed service was for more than 90 days: 1. The RSM must be reinstated to the position the RSM would have held had the RSM remained continuously employed or to a position of like seniority, status and pay, if the RSM is qualified or can become qualified for the position by the employer s reasonable efforts ( escalator principle ). 10 Reemployment Rights of the Military (USERRA)

13 2. If the RSM is not qualified to perform that position after reasonable efforts by the employer, then the RSM must be reinstated to the position the RSM held on the date when uniformed service began, or to a position of like seniority, status and pay which the RSM is qualified to perform. 3. If the RSM cannot qualify for either of the positions noted above, after reasonable efforts by the employer to qualify the person, then the RSM may be reinstated to a position of lesser status and pay that the RSM is qualified to perform, that is the nearest approximation to the above-referenced positions, with full seniority. C. If the RSM has a disability incurred or aggravated during service, the RSM has the following reemployment rights: 1. The employer must first use reasonable efforts to accommodate the disability so the RSM can be reemployed in the position the RSM would have had if continuously employed ( escalator principle ). 2. If the RSM is not qualified to perform this position despite reasonable accommodations, the employer must reemploy the RSM in: a. Any other position that is equivalent in seniority, status and pay as long as the RSM can perform the duties with reasonable accommodation; or b. A position that is the nearest approximation to a position referred to above in terms of seniority, status, and pay, consistent with the circumstances of the RSM s case. D. If more than one employee is entitled to reemployment in the same position and they report for reemployment: 1. Then the person who left the position first has the superior right to be reemployed in the position. 2. Then the employer must reemploy the other person in any other position that provides similar status and pay as set forth in the reemployment schemes above. Section 4313 of USERRA. OBLIGATIONS UPON REEMPLOYMENT A. Not An employee at-will. 1. An RSM who is reemployed by an employer cannot be discharged from employment, except for cause: a. Within 180 days after reemployment if the period of uniformed service was more than 30 days but less than 181 days; or Reemployment Rights of the Military (USERRA) 11

14 b. Within one year after reemployment if the period of uniformed service was more than 180 days. 2. Persons who serve for 30 or fewer days are employees at will when reemployed. B. Forfeiture of protection. If an employee is on military leave for more than 30 days or is hospitalized or is recovering from an injury incurred while performing uniformed service, 1. And the employer requests documentation that: (a) the person s reemployment application is timely, (b) the total period of service has not exceeded the five-year limitation, and (c) the person s severance from service was not disqualifying, 2. And the documents become available after the person is reemployed, and the documents establish that the service member does not meet criteria a, b and c above, then the employer may terminate the employment of the person and any USERRA benefits or rights, effective as of that moment. The termination cannot, however, be retroactive to the date of reemployment. Sections 4316(c) and 4312(f) of USERRA C. Rights when reemployed. Any RSM reemployed is entitled to receive seniority and: 1. Rights and benefits determined by seniority; plus 2. The additional seniority and rights and benefits the RSM would have attained with reasonable certainty if the RSM had remained continuously employed. A right or benefit is seniority-based if it is determined by or accrues with length of service, but not if it is compensation for work performed or is subject to a significant contingency. D. What are rights and benefits of employment? USERRA broadly defines the terms benefit, benefit of employment, or rights and benefits to include any: 1. Advantage; 2. Profit; 3. Privilege; 12 Reemployment Rights of the Military (USERRA)

15 4. Gain; 5. Status; 6. Account; or 7. Interest. Other than wages or salary for work performed, which accrues by reason of a/an: 1. Employment contract; 2. Agreement; 3. Employer policy; 4. Plan; or 5. practice; and 6. Including rights and benefits under: a. A pension plan; b. A health plan; c. An employee stock ownership plan; d. Insurance coverage and awards; e. bonuses; f. Severance pay; g. Supplemental unemployment benefits; h. Vacations; and i. The opportunity to select work hours or the location of employment. Section 4303(2) of USERRA. REINSTATEMENT OF HEALTH PLAN COVERAGE UPON REEMPLOYMENT A. Waiting period. Except for illness or injury incurred in or aggravated during uniformed service, a waiting period cannot be imposed upon reinstatement of health coverage to the service person or to a dependent if no waiting period would have been in effect had the employee not been absent for military service. Reemployment Rights of the Military (USERRA) 13

16 B. Preexisting condition limitation. Except for an illness or injury incurred in or aggravated during uniformed service, a health plan cannot impose a preexisting condition exclusion on the service person or on a dependent, unless the exclusion would have been imposed regardless of military service. C. Illness or injury incurred or aggravated by military service. Service members are given extensive exit physicals/examinations at the end of their military service. The Secretary of Veterans Affairs determines whether an illness or injury was incurred in or aggravated during military service and reports this to the service member as part of the exit physical. TRICARE military health coverage will continue to cover an illness or injury incurred in or aggravated during military service. The uniformed service considers every injury or illness which arises during the period of military service as an illness or injury incurred in or aggravated during uniformed service, whether the condition arose from combat or from an accident. Section 4317(b) of USERRA. USERRA ENFORCEMENT ACTIONS The Department of Labor, through the Veterans Employment and Training Service (VETS), provides assistance to all service members having claims under USERRA. An aggrieved service member may file an action under USERRA in a U.S. District Court or may file a complaint with the DOL. A. DOL investigation. In its investigation, the DOL has very broad powers, including: 1. Reasonable access to and the right to interview persons with information relevant to the investigation; 2. Reasonable access to any documents relevant to the investigation; and 3. The right to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. B. Department of justice prosecution. 1. If resolution is unsuccessful following the DOL s investigation, the service member may ask the DOL to refer his/her claim referred to the U.S. Department of Justice. 2. If the Department of Justice is satisfied that the person is entitled to the rights or benefits sought, it may bring an action against the state or political subdivision (as an employer) in the name of the United States as the plaintiff in the action. 14 Reemployment Rights of the Military (USERRA)

17 C. Private action. 1. An individual may file a private enforcement action either after pursuing his/her rights with the DOL and/or the DOJ, or instead of exhausting those remedies. 2. A private action may be filed even if the DOL has been unable to resolve the matter and even if the DOJ has declined to assist the service person. D. All actions. 1. No fees or court costs may be charged or taxed against the service member. 2. No state statute of limitations applies. E. Relief and penalties. 1. The court may require: a. Employer compliance with USERRA; b. Payment of compensation for any lost wages or benefits arising from the employer s failure to comply with USERRA; c. Payment of an amount equal to the lost wages and benefits as liquidated damages if the employer s failure to comply with USERRA was willful (i.e., knowingly or recklessly in disregard of the law); and d. Payment of reasonable attorney fees, expert witness fees and other litigation expenses to a prevailing service member who obtained private counsel to pursue the action under USERRA. 2. A state or political subdivision is subject to the same remedies, including prejudgment interest, as may be imposed upon any private employer. Sections 4321, 4322, 4323, and 4326 of USERRA. STATE LAW Most, if not all, states have laws regarding military leaves of absence. FMLA MILITARY LEAVE REGULATIONS A. Section Leave Because of A Qualifying Exigency. (a) Eligible employees may take FMLA leave while the employee s spouse, son, daughter, or parent (the covered military member ) is on active duty or call to active duty status as defined in (b)(2) for one or more of the following qualifying exigencies: Reemployment Rights of the Military (USERRA) 15

18 (1) Short-notice deployment. (i) To address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty in support of a contingency operation seven or less calendar days prior to the date of deployment; (ii) Leave taken for this purpose can be used for a period of seven calendar days beginning on the date a covered military member is notified of an impending call or order to active duty in support of a contingency operation; (2) Military events and related activities. (i) To attend any official ceremony, program, or event sponsored by the military that is related to the active duty or call to active duty status of a covered military member; and (ii) To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member; (3) Childcare and school activities. (i) To arrange for alternative childcare when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement for a biological, adopted, or foster child, a stepchild, or a legal ward of a covered military member, or a child for whom a covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence; (ii) To provide childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the active duty or call to active duty status of a covered military member for a biological, adopted, or foster child, a stepchild, or a legal ward of a covered military member, or a child for whom a covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence; (iii) To enroll in or transfer to a new school or day care facility a biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered 16 Reemployment Rights of the Military (USERRA)

19 military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence, when enrollment or transfer is necessitated by the active duty or call to active duty status of a covered military member; and (iv) To attend meetings with staff at a school or a daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors, for a biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence, when such meetings are necessary due to circumstances arising from the active duty or call to active duty status of a covered military member; (4) Financial and legal arrangements. (i) To make or update financial or legal arrangements to address the covered military member s absence while on active duty or call to active duty status, such as preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust; and (ii) To act as the covered military member s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on active duty or call to active duty status, and for a period of 90 days following the termination of the covered military member s active duty status; (5) Counseling. To attend counseling provided by someone other than a health care provider for oneself, for the covered military member, or for the biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member; Reemployment Rights of the Military (USERRA) 17

20 (6) Rest and recuperation. (i) To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment; (ii) Eligible employees may take up to five days of leave for each instance of rest and recuperation; (7) Post-deployment activities. (i) To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member s active duty status; and (ii) To address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements; (8) Additional activities. To address other events which arise out of the covered military member s active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave. (b) A covered military member means the employee s spouse, son, daughter, or parent on active duty or call to active duty status. (1) A son or daughter on active duty or call to active duty status means the employee s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on active duty or call to active duty status, and who is of any age. (2) Active duty or call to active duty status means duty under a call or order to active duty (or notification of an impending call or order to active duty) in support of a contingency operation pursuant to: Section 688 of Title 10 of the United States Code, which authorizes ordering to active duty retired members of the Regular Armed Forces and members of the retired Reserve who retired after completing at least 20 years of active service; Section 12301(a) of Title 10 of the United States Code, which authorizes ordering all reserve component members to active duty in the case of war or national emergency; Section of Title 10 of the United States Code, which authorizes ordering any unit or unassigned member of the Ready Reserve to active duty; Section of Title 10 of the United States Code, which authorizes ordering any unit or unassigned member of the Selected Reserve and certain members of the Individual Ready Reserve to active duty; Section of Title 10 of the United States Code, which 18 Reemployment Rights of the Military (USERRA)

21 authorizes the suspension of promotion, retirement or separation rules for certain Reserve components; Section of Title 10 of the United States Code, which authorizes calling the National Guard into federal service in certain circumstances; chapter 15 of Title 10 of the United States Code, which authorizes calling the National Guard and state military into federal service in the case of insurrections and national emergencies; or any other provision of law during a war or during a national emergency declared by the President or Congress so long as it is in support of a contingency operation. (i) Employees are eligible to take FMLA leave because of a qualifying exigency when the covered military member is on active duty or call to active duty status in support of a contingency operation pursuant to one of the provisions of law identified in paragraph (b)(2) of this section as either a member of the reserve components (Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve and Coast Guard Reserve), or a retired member of the Regular Armed Forces or Reserve. An employee whose family member is on active duty or call to active duty status in support of a contingency operation as a member of the Regular Armed Forces is not eligible to take leave because of a qualifying exigency. (ii) A call to active duty for purposes of leave taken because of a qualifying exigency refers to a Federal call to active duty. State calls to active duty are not covered unless under order of the President of the United States pursuant to one of the provisions of law identified in paragraph (b)(2) of this section in support of a contingency operation. (3) The active duty orders of a covered military member will generally specify if the servicemember is serving in support of a contingency operation by citation to the relevant section of Title 10 of the United States Code and/or by reference to the specific name of the contingency operation. A military operation qualifies as a contingency operation if it: (i) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or (ii) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or of Title 10 of the United States Code, chapter 15 of Title 10 of the United States Code, or any other provision of law during a war or during a national emergency declared by the President or Congress. 10 U.S.C. 101(a)(13). Reemployment Rights of the Military (USERRA) 19

22 B. Section Leave to Care for a Covered Servicemember with a Serious Injury or Illness. (a) Eligible employees are entitled to FMLA leave to care for a current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list. Eligible employees may not take leave under this provision to care for former members of the Armed Forces, former members of the National Guard and Reserves, and members on the permanent disability retired list. (1) A serious injury or illness means an injury or illness incurred by a covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating. (2) Outpatient status, with respect to a covered servicemember, means the status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient; or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients. (b) In order to care for a covered servicemember, an eligible employee must be the spouse, son, daughter, or parent, or next of kin of a covered servicemember. (1) A son or daughter of a covered servicemember means the covered servicemember s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered servicemember stood in loco parentis, and who is of any age. (2) A parent of a covered servicemember means a covered servicemember s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. This term does not include parents in law. (3) The next of kin of a covered servicemember is the nearest blood relative, other than the covered servicemember s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under 20 Reemployment Rights of the Military (USERRA)

23 the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember s only next of kin. For example, if a covered servicemember has three siblings and has not designated a blood relative to provide care, all three siblings would be considered the covered servicemember s next of kin. Alternatively, where a covered servicemember has a sibling(s) and designates a cousin as his or her next of kin for FMLA purposes, then only the designated cousin is eligible as the covered servicemember s next of kin. An employer is permitted to require an employee to provide confirmation of covered family relationship to the covered servicemember pursuant to (j). (c) An eligible employee is entitled to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness during a single 12-month period. (1) The single 12-month period described in paragraph (c) of this section begins on the first day the eligible employee takes FMLA leave to care for a covered servicemember and ends 12 months after that date, regardless of the method used by the employer to determine the employee s 12 workweeks of leave entitlement for other FMLAqualifying reasons. If an eligible employee does not take all of his or her 26 workweeks of leave entitlement to care for a covered servicemember during this single 12-month period, the remaining part of his or her 26 workweeks of leave entitlement to care for the covered servicemember is forfeited. (2) The leave entitlement described in paragraph (c) of this section is to be applied on a per-covered-servicemember, per-injury basis such that an eligible employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember with a subsequent serious injury or illness, except that no more than 26 workweeks of leave may be taken within any single 12-month period. An eligible employee may take more than one period of 26 workweeks of leave to care for a covered servicemember with more than one serious injury or illness only when the serious injury or illness is a subsequent serious injury or illness. When an eligible employee takes leave to care for more than one covered servicemember or for a subsequent serious injury or illness of the same covered servicemember, and the single 12-month periods corresponding to the different military caregiver leave entitlements overlap, the employee is limited to taking no more than 26 workweeks of leave in each single 12-month period. Reemployment Rights of the Military (USERRA) 21

24 (3) An eligible employee is entitled to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the single 12-month period described in paragraph (c) of this section, provided that the employee is entitled to no more than 12 weeks of leave for one or more of the following: because of the birth of a son or daughter of the employee and in order to care for such son or daughter; because of the placement of a son or daughter with the employee for adoption or foster care; in order to care for the spouse, son, daughter, or parent with a serious health condition; because of the employee s own serious health condition; or because of a qualifying exigency. Thus, for example, an eligible employee may, during the single 12-month period, take 16 weeks of FMLA leave to care for a covered servicemember and 10 weeks of FMLA leave to care for a newborn child. However, the employee may not take more than 12 weeks of FMLA leave to care for the newborn child during the single 12-month period, even if the employee takes fewer than 14 weeks of FMLA leave to care for a covered servicemember. (4) In all circumstances, including for leave taken to care for a covered servicemember, the employer is responsible for designating leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the designation to the employee as provided in In the case of leave that qualifies as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition during the single 12-month period described in paragraph (c) of this section, the employer must designate such leave as leave to care for a covered servicemember in the first instance. Leave that qualifies as both leave to care for a covered servicemember and leave taken to care for a family member with a serious health condition during the single 12-month period described in paragraph (c) of this section must not be designated and counted as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition. As is the case with leave taken for other qualifying reasons, employers may retroactively designate leave as leave to care for a covered servicemember pursuant to (d). (d) A husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 26 workweeks of leave during the single 12-month period described in paragraph (c) of this section if the leave is taken for birth of the employee s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement, to care for the employee s parent with a serious health condition, or to care for a covered servicemember with a serious injury or illness. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as a husband and wife are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 26 workweeks of FMLA leave. 22 Reemployment Rights of the Military (USERRA)

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