With the prospect of war looming larger with each passing day, many education employees have questions about how military service can affect their jobs with their school districts. Following is a brief description of the Uniformed Services Employment and Re-employment Rights Act (USERRA), a federal law that gives rights to employees called to military service.
In 1994 the federal government enacted USERRA to minimize the disruption of people’s lives when they are called to service in the military. An individual qualifies for the protection of USERRA if he or she meets the following criteria:
- The individual has given advance notice of his or her military service to the employer.
- The cumulative length of military service does not exceed five years (with some exceptions).
- The individual’s discharge from the military will not be dishonorable.
- The individual submits an application for re-employment to the employer.
- The individual provides documentation of service longer than 30 days.
Re-employment rights
If the above conditions are met, an individual shall be re-employed in the position he or she would have had if he or she had not left employment for military service, as long as the employee remains qualified for that position. If the individual is not qualified for that position, the employer must make reasonable efforts to qualify the individual.
If reasonable efforts have been made, but the individual still does not qualify, then the individual shall be re-employed in the position in which he or she was employed on the date of commencement of military service. If the military service was for more than 90 days, the employer does not have to restore the employee to the exact position, but the employer must provide one of like status and pay, and maintain the employee’s seniority as if he or she had not been gone.
Health insurance benefits
An individual who is qualified for USERRA protection and who is covered under his or her employer’s group health plan when called into military service may elect to continue coverage, including family coverage, under the health plan. The plan will provide coverage for 18 months or until the individual returns from military service, whichever is shorter. The individual may be required to pay up to 102 percent of the full premium for the group health plan. However, if the employee serves in the armed forces for less than 31 days, he or she may not be required to pay more than the employee's share of the health insurance premium.
Retirement benefits
An education employee who is qualified for USERRA protection will not lose credit in the Public School Retirement System for the time in military service. The time in military service will count as service in the PSRS system. In addition, a member of PSRS may elect to pay the contributions he or she would have made while in active military service. If a member elects to do this, the school district that employs the member after his or her discharge from the military shall pay the employer contributions it would have paid for that individual, with interest.
In summary, teachers who are called into military service are guaranteed that their positions (or comparable positions if the absence is more than 90 days) will be held for them, and the positions will reflect their seniority, status, and pay as if the absence had not occurred. They may keep their health insurance coverage for up to 18 months. And they will receive credit in PSRS for their time in military service. Some school districts may have military-leave policies that are more generous than the law requires. Be sure to check your district policies and memoranda of understanding.
By Jacqueline Shipma, former director of legal services