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President Bush's war on terrorism in response to the Sept. 11 terrorist attacks has led to the mobilization of 50,000 National Guard and Reserve troops. Those called to military service are making real sacrifices, as they leave both jobs and families. Some are firefighters.
Following the Persian Gulf War, when more than 265,000 reservists and national guardsmen were activated, Congress enacted the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA) to assist those who are mobilized. As Washington labor law attorney Roxane Sokolove has noted, this law significantly broadens the protections provided to those in military service.
USERRA prohibits discriminatory actions by employers on the basis of military service, and it guarantees reemployment to those returning from military service. It is important to firefighters and fire departments because it covers all public and private employers, including fire departments. This includes any person working in a permanent position (including part-time and probationary), but not temporary employees.
Rules Governing Employers
The law establishes a number of requirements for fire departments and other employers. Employees who are mobilized must be granted a "military leave of absence," and treated in the same way as others who take a leave of absence. Therefore, in most cases, the leave is unpaid, unless there is a policy of paying employees who are on such a leave. The employee has the right to use any accrued vacation time, but the department cannot require that leave be used.
Employees may choose to continue health insurance coverage for themselves and their dependents, and the law includes a formula for determining how much the employee must pay in premiums. The employee is entitled to this health insurance coverage for up to 18 months of the military leave.
Employees' pensions plans also receive protection. Time in military service must be considered service with the department, and the department must continue its contributions to the plan. Employees are allowed to make up missed contributions to pension plans, and employers must make up missed matching contributions.
Departments are not required to provide most other benefits, such as leave accrual, to employees on military leave. However, if they do offer such benefits to other employees who take a leave of absence, then these must be offered to employees on military leave.
Employees returning from military service of 90 days or less have the right to be reemployed in the same positions and with the same seniority they would have held if they had not left. Employees whose military service is longer than 90 days are entitled to their same jobs or one with the seniority, pay and benefits as they would have attained had there been no absence. The only exception to this rule is when the department's circumstances have changed so that reemployment would be impossible, unreasonable or an undue hardship.
Employees must meet four requirements to qualify for reemployment:
- The employee must provide advance notice to the employer, unless military necessity prevents giving notice, or it is otherwise unreasonable or impossible to do so.
- The leave may not exceed five years, except in times of declared war or national emergency.
- The employee must receive an honorable or general discharge from the service.
- The employee must report for work, or apply for reemployment, within a reasonable time. The law spells out in some detail what is considered reasonable, based on the length of time that the employee was absent.
For service of less than 30 days, the employee must return to work on his or her first regularly scheduled shift after completion of the military service.
For military service from 31 to 180 days, the employee must submit an application for reemployment no later than 14 days after completing the military service. If this is impossible or unreasonable for the employee, through no fault of his or her own, then the application must be submitted on the next day when it becomes possible to submit the application.