Franklin & Marshall College Franklin & Marshall College

Military Leave - USERRA Policy

Eligibility

Members of the Uniformed Services are entitled to certain rights regarding seniority, status, pay, and fringe benefits should it become necessary to take a leave of absence for Service. Under the Uniformed Services Employment and Re-employment Rights Act of 1994 as amended (USERRA), it is unlawful for an employer to refuse an employee's request for leave of absence for Service, or to discriminate in employment or re-employment based on membership in the Uniform Services or based on actual Service. USERRA extends re-employment rights for up to five (5) years to individuals who have been absent from work for military duty in the Uniformed Services. The College's Military Leave Policy is intended to comply fully with relevant requirements of USERRA.

For purposes of this policy, Uniformed Service is defined as the Army, Navy, Marine Corps, Air Force, or Coast Guard; the Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve; the Army National Guard or Air National Guard; Commission Corps of the Public Health Service; and any other category of persons designated by the U.S. President in time of war or emergency. Service is defined as the performance of military duty on a commission or non-commission status, and on a voluntary or involuntary basis, in a Uniformed Service, including active duty; active duty for training; initial active duty for training; inactive duty training; full-time National Guard duty; absence from work for physical examinations to determine an individual's fitness for Service in the Uniformed Services; and funeral honors duty by National Guard or reserve members.

Leave Notification Requirements

If a College employee must take a leave of absence from work for Service, the employee must notify his/her supervisor and Human Resources in advance, either in writing or verbally. The College expects to be notified as soon as the employee is aware of the need for leave, unless advance notice is unreasonable based on military necessity.

Length of Leave

Re-employment rights may only be retained if an employee's cumulative length of leave for Service is 5 years or less. The 5 year limit does not include inactive duty training; annual training; involuntary recall to active duty or involuntary retention on active duty; or voluntary or involuntary active duty in support of war, national emergency, or certain operational missions.

Pay During Leave

A full-time College employee who is a member of the Uniformed Service and takes a leave of absence for Service will receive full, normal base salary from the College for up to a total of 4 work weeks.  Overtime premiums, shift differential, and any additional forms of pay are not included in base salary.

Leave with pay is provided for up to a maximum of 4 weeks during an employee’s term of employment with the College.

Leave beyond 4 weeks will be without pay.  Full-time employees may use earned vacation benefits during unpaid leave, but are not required to do so.

Fringe Benefits During Leave

Health and Dental Coverage-- During a Service leave, a full-time College employee will be eligible for coverage through the College's Group Health & Prescription Drug Plan , Group Dental Plan, and Employee Assistance Program for him/herself and covered dependents, at active employee rates, for up to 30 calendar days (one month). 

In the case of Service leave exceeding 30 calendar days, USERRA requires the College to extend health and dental coverage to the employee and his/her covered dependents, at a charge of 102% of the premium, until the lesser of 24 months from the date the employee's civilian employment ended, or until the end of the period allowed for the individual to apply for re-employment.

“COBRA” continuation rights also apply to the employee and each of his/her covered dependents.  Individuals are generally eligible for continued health, dental, and/or coverage through the Employee Assistance Program via COBRA for up to 18 months.  COBRA participants pay 100% of the premium required for their coverage, plus a 2% administrative fee.  The maximum period of continued health and dental coverage is 24 months.

Flexible Spending Accounts Plan-- A full-time employee may continue coverage through the Medical Expense Reimbursement Account for up to 24 months during military leave.

Life Insurance and Long-term Disability Insurance Coverage—Life and long-term disability coverage end on the employee's last actual working day at the College prior to leave. An employee on leave may choose to convert his/her group life insurance policy to an individual policy in order to retain coverage. To do so, the employee must contact the College's life insurance carrier within 31 calendar days of loss of coverage under the group policy, and pay premiums in a timely manner.

Retirement Savings Plan-- Both College and elective contributions to the Franklin & Marshall Retirement Plan are discontinued during an unpaid leave of absence

Vacation and Sick Leave-- Paid vacation eligibility and paid sick leave based on length of service will continue to accrue during a leave for Service for a full-time employee, according to the College's benefit plans.

Re-employment and Notice Requirements of Intent to Return to Work

A former College employee is eligible for re-employment following Service if (1) he/she gave advance written or verbal notice to the College of the need for military leave, unless advance notice was not possible based on military necessity, (2) the cumulative length of the employee's absence from the College for Service did not exceed 5 years, (3) the employee was released from Service under honorable conditions and provides verification of such, and (4) the employee notifies the College of his/her intent to return to work, and returns to employment in a timely manner, as described below.

If an individual is eligible to be re-employed, he/she will be restored to the job and benefits the individual would have attained if he/she had not been absent due to military service or, in some cases, to a comparable position (see below).

Notice Requirements-- A former College employee must notify the College of his/her intent to return to work promptly following completion of Service. The Uniformed Services Employment and Re-employment Rights Act requires employees returning from Service to notify their employer and report to work within the following specified time periods:

  • If the employee served 1 to 30 days (less than 31 calendar days), or was away from employment for purposes of a military readiness physical examination, he/she must return to work at the beginning of the first day of the next regularly scheduled work period following the completion of Service. If this is impossible or unreasonable through no fault of the employee, he/she must return to work as soon as possible.
  • If the employee served 31 to 180 calendar days, he/she must submit an application for re-employment to the College within 14 days after completion of Service, or as soon as possible if the failure to make a timely application is through no fault of the employee.
  • If the employee served 181 calendar days or more, the employee must submit an application for re-employment to the College within 90 days after completion of Service.

If Service was for more than 30 days, the returning employee must submit, along with his/her application for re-employment, written documentation establishing that (1) the employee's application for return to work is timely, (2) the employee's cumulative Service has not exceeded 5 years, and (3) the employee has not been terminated from Service due to dishonorable or bad conduct discharge.

Returning employees who are hospitalized for, or recovering from, injuries incurred or aggravated by Service may apply for re-employment within 2 years following recovery from such injuries.  Such employees may return, within 2 years following recovery, when able to perform their essential job functions, with or without reasonable accommodations.  Employees who are unable to return to work do not receive pay from the College until they do return.

Failure to Give Timely Notice-- Failure to report or apply for re-employment within the appropriate time periods set forth above will subject the employee to disciplinary action, up to and including termination of employment, based on the College's standard policies for unexcused absences. Individuals returning from a Service commitment may not be automatically terminated for failure to report on time, but will be held to the College's standards for unexcused absences from work (see Standards of Conduct for more information).

Re-employment Rights-- USERRA entitles an employee returning from Service to all seniority and other rights and benefits determined by the seniority the employee had prior to the commencement of military Service. The employee is also entitled to any seniority and related benefits that he/she would have attained if continuously employed. In addition, employees fulfilling a Service commitment are entitled to other rights and benefits not determined by seniority, if the College offers these benefits to employees on furloughs or leaves of absence.

Upon return from Service, an employee will be entitled to reinstatement to a particular position in the following manner:

  • Service of 90 days or less: An employee returning from Service is entitled to employment in the position which he/she held immediately prior to military leave, or the position in which he/she would have been employed if employment had not been interrupted by military leave.
  • More than 90 days of Service: An employee returning from Service of more than 90 days is entitled to return to the position which he/she held immediately prior to military leave; the position in which he/she would have been employed if employment had not been interrupted; or a position of like seniority, status, and pay, the duties of which the returning employee is qualified to perform after reasonable efforts by the College to qualify him/her.

The College will make reasonable efforts to train a returning employee in order to refresh or upgrade his/her skills and abilities, in an effort to qualify the employee for re-employment in the position he/she would have held if employment had not been interrupted by Service. The College will make reasonable accommodations to qualified employees who are disabled during military Service to allow them to perform their essential job functions.

The College is not required to re-employ an individual returning from Service if circumstances have changed sufficiently so that re-employment is not possible, reasonable, or would pose an undue hardship on the College. In addition, if a College employee was employed for a temporary or brief, non-recurrent period, with no reasonable expectation that such employment would continue indefinitely or for a significant period, no re-employment will be granted.

Fringe Benefits Upon Return to Work

Individuals who are eligible to return to work, and return to work within prescribed time limits are eligible for certain benefits. Upon re-employment, a waiting period will not be imposed on a returning full-time employee in connection with the reinstatement of health insurance coverage or other fringe benefits for which the employee was eligible prior to military leave. Pre-existing condition exclusions will not be imposed in connection with health insurance coverage as required by USERRA. A returning employee is eligible for health insurance coverage through the College's plan without a waiting period even if he/she did not elect to continue health insurance coverage while on leave. insurance A returning employee will not be treated as having incurred a "break in service" with the College for purposes of eligibility for participation in the Retirement Plan. Military service will be considered as full-time service for a returning full-time employee, for purposes of determining the date the employee becomes (became) eligible for a College contribution to the Retirement Plan. Retirement Plan contributions made on behalf of an eligible employee will begin upon re-employment. Upon timely return to work from Service, the College will make contributions to the Retirement Plan for eligible employees equal to those employer contributions which would have been made but for military leave. Plan contributions will be based on the rate the employee would have received but for the military leave.

Employment Practices

The College will not discriminate or retaliate against an employee or job applicant because he/she is a past or present member of the Uniformed Services, has applied for membership in the Uniformed Services, or is obligated to serve in the Uniformed Services. The College will not discriminate in its hiring or employment practices. In addition, the College will not retaliate against anyone assisting in the enforcement of USERRA rights, including testifying or making a statement in connection with a proceeding under USERRA.

Questions about USERRA may be directed to Human Resources, (717) 291-3995. The U.S. Department of Labor, Veterans Employment and Training Service (VETS), is authorized to investigate and resolve complaints of USERRA violations. For assistance in filing a complaint, or for any other information on USERRA, an employee may contact VETS at (866) 4-USA-DOL or visit its website at http://www.dol.gov/vets. If an individual files a complaint with VETS and VETS is unable to resolve it, he/she may request that the case be referred to the Department of Justice for representation. An individual may also bypass the VETS process and bring a civil action for violations of USERRA.

Pennsylvania State Law

Under current Pennsylvania state law, reservists and members of the PA National Guard who are called to or ordered into active duty, other than active duty for training, are entitled to additional health insurance protections. Under these circumstances, reservists and PA National Guard members are entitled to continue health insurance coverage that was in effect before the leave began for 30 days at no cost. After the first 30 days of leave, health insurance coverage may continue and the employee will be required to pay 100% of the cost to the College for such coverage. The health insurance continuation period will extend for the duration of the leave. Upon timely return from leave, all benefits for which the individual is eligible will be reinstated.

Federal USERRA Notice

Federal law requires employers to notify employees of their rights under USERRA, and employers may meet this requirement by displaying the USERRA notice where they customarily place notices for employees. You may contact Human Resources, (717) 291-3995, for a copy of the USERRA notice. The notice is also posted in the Human Resources office, College Square.

You may obtain information about USERRA through the Department of Labor web site at www.dol.gov/elaws/vets/userra/ .

Franklin & Marshall College intends to abide by all applicable USERRA requirements.  If any employee feels his/her USERRA rights have been violated or the College is not properly applying provisions of USERRA, he/she should promptly notify the Assistant Director or Director, Human Resources, (717) 291-3995.


Policy Maintained by: Human Resources, Director

Last Reviewed: May 9, 2013