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.
Equal Benefits
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.
For military service of more than 180 days, the employee must submit an application for reemployment no later than 90 days after completing the military service.
These deadlines can be extended for up to two years if an employee is hospitalized or recovering from an injury or illness incurred while in the military. This two-year period may be further extended to accommodate circumstances beyond the employee's control.
Promotional Exams
The requirement that fire departments return firefighters to the same status as if they had not left may create a problem. Firefighters typically advance in rank through a competitive exam process, which in many departments might be given infrequently, perhaps only once in several years. It is possible that a firefighter called to military duty would miss the opportunity to take a promotional exam, and thus the opportunity for promotion offered to others of similar seniority and status.
Sokolove suggests that a reasonable accommodation for a firefighter returning from military leave would be to provide an opportunity to take the exam upon the individual's return. The firefighter then could be placed at the appropriate place on the eligibility list for the higher rank.
Departments must make "reasonable efforts" to accommodate an employee who returns from military service with a disability incurred during the service.
If it is not possible for the employee to resume his or her prior function, then the department must re-employ the person in some other position that he or she is qualified to perform. This must be the "nearest approximation" of the position to which the employee otherwise would have been entitled, with the same seniority, status and pay. If none is available, then a job of lesser status and pay may be offered.
The disability provision may be especially challenging for fire departments, since most fire department jobs have special physical requirements. Those positions that do not have physical requirements often do not have comparable status and pay.
Special Protection
The law also provides a special protection against discharge for employees returning from military service. For those who served up to 180 days, the special protection period is 180 days. For those who served more than 180 days, the protection lasts for one year. During this time, the employee can be removed from the job only for cause.
In addition to the federal law, fire departments also should be aware of any relevant state laws. Many states have statutes similar to USERRA, which may provide benefits that are greater than the federal requirements. Thus, for example, Pennsylvania provides for more generous health insurance benefits, according to Pittsburgh attorney Peter Ennis. Some states require public employers (i.e., fire departments) to pay employees their regular salaries for up to 30 days during military absences.
Sokolove has offered several important suggestions for employers. Fire department officials should familiarize themselves with their obligations (and those of their employees) under USERRA. They should review personnel manuals to assure that the language is consistent with the law. Further, they should review their health and pension plans to ensure that contributions continue during the employee's absence, and that employees on military leave are treated the same as other employees on a leave of absence.
Know The Rules Sokolove concludes, "An employer's knowledge of its rights and those of its employees in uniformed service is crucial to minimizing disruption in the workplace as well as in the lives of all employees - those remaining and those called to active duty."
Fire departments would be well advised to follow her counsel.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.
