Military Leave for South Carolina Employees – An Employer’s Obligation When Duty Calls

1. Military Leave for South Carolina Employees – An Employer’s Obligation When Duty Calls

2. Military Leave for South Carolina Employees – An Employer’s Obligation When Duty Calls As employment law attorneys for businesses in South Carolina, we deal with issues regarding leave for military employees. South Carolina, like other states, has state and National Guard service members living and working within the state. Serving the country as a uniformed service member can disrupt the normal flow of civilian life with drill weekends or out of state or deployments. In this article, we explain what employers should be know about tine off and leave for active duty and reserve military employees. Federal and State Acts Concerning Leave for Military Employees The federal government enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA) in 1994. The law sets forth rights and responsibilities for uniformed service members and their civilian employees. USERRA ensures that employees who have served or currently serve: 1) are not disadvantaged in their civilian work because of their service; 2) are reemployed to their civilian jobs after deployment; and 3) are not discriminated against based on current, past or future military service. USERRA most frequently applies to Guard and Reserve military personnel, but also covers people serving in the Armed Forces, National Disaster Medical System and Commissioned Corps of the Public Health Services. USERRA preempts South Carolina’s state law in any terms where South Carolina’s law is less protective of service members.

3. Employee’s Obligations Concerning Military Leave Though USERRA requires employers to offer protections to service members, these employees must provide some information to employers. 1. Employees must provide notice to employers that they will be absent due to military service. Employees should give notice to their employers as soon as they have received it. Employees should provide a copy of their orders where possible. 2. Employees must leave civilian work for the purpose of military service; nothing else. 3. Employees must serve honorably for USERRA to apply; any dishonorable action against the employee in the execution of their service duties may affect employers’ obligations to honor USERRA terms. 4. Employees may not be absent for more than five cumulative years from any one employer. This provision has some exceptions where calls for service do not count toward the five year maximum. 5. Employees must report back to work in a timely fashion, which depends on the length of service under USERRA. Any deviation from these employee obligations could jeopardize the applicability of USERRA to that employee. However, before taking any negative action against the employee, the employer should get advice from an employment law attorney.

4. Employer’s Obligations Concerning Leave for Military Employees USERRA applies to all public, private and government employers in the United States regardless of size. It also applies to foreign employers doing business in the United States and American companies doing business in foreign countries. If an employee properly takes leave pursuant to USERRA, once the employee returns to work, the employer must reinstate the employee to his/her previous position or a position of similar seniority, status and salary. If the employee is no longer qualified to hold the same or similar position he/she previously held, the employer must offer an alternative position for which the employee is qualified and must pay the employee an appropriate salary for the adjusted position. Issues that Arise with Uniformed Service Leave Policies are rather clear when applying the Family Medical Leave Act, Americans with Disabilities Act and in-house policies regarding non-military related leave. However, extended leave associated with uniformed service can pose issues with insurance, benefits and advancement. Must the Employer Pay the Employee for Leave under USERRA? While employers must permit leave under USERRA and must reinstate employees to their previous position with equivalent pay and status, employers do not have to offer this leave as paid unless they offer paid leave for non-military reasons of similar length and circumstances. If an employer offers paid leave and the employee has leave for which he or she is eligible, the employee may take paid leave concurrent with the military leave. However, the employee is not required to do so. If an employee is classified as exempt under the Fair Labor Standards Act (FLSA) and the employee works any part of the week, the employer must pay the employee his or her salary for the whole week.

5. Must the Employer Continue Health Benefits for Leave under USERRA? If an employee’s USERRA service is less than 31 days, continuation of medical benefits is same as when he or she is actively employed. Employees can opt to continue health insurance coverage under the employer’s health plan for up to 24 months for longer periods of service. If an employer’s policy is not to provide insurance coverage beyond 31 days, the employee is entitled to insurance coverage similar to COBRA coverage terms. Escalator Principle The escalator principle levels the playing field so the employee remains entitled to the position he or she would have held had he or she not been on military leave. If an employee is on military leave from a civilian position that would have entitled the employee to an advancement while the employee was on leave, the employer must provide the employee with that advance. This obligation requires the employer to make reasonable efforts to train the employee to make him or her qualified for the advanced position. Must the Employer Provide Pension or Retirement Plan Contributions? The basic rule is that employers must fund pension benefits that a re-employed participant did not receive due to qualifying military service. An employee may be out for an extended period, but still accrues time as if there were no break in service for purposes of a pension. For a defined benefit plan, a rehired veteran is permitted to make up contributions required to earn a benefit accrual for the military service period. If the employer offers a 401(k) plan where both the employer and employee contribute, the employee must be permitted to make contributions over a three-year period during which the employer with also make contributions. The employee designates what period the contributions cover.