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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.
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.
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.