The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)
USERRA affects employment, reemployment, employment benefits and retention in employment, when employees serve or have served in the uniformed services. The uniformed services consist of the following:
- Army, Navy, Marine Corps, Air Force or Coast Guard
- Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve or Coast Guard Reserve
- Army National Guard or Air National Guard
- Any other category of persons designated by the president in time of war or emergency.
If an employee is absent from a DHS position by reason of service in the uniformed services, he or she is eligible for reemployment under USERRA by meeting the following criteria:
- DHS had advance notice of the employee's service. The employee completes Form 10AD001E, Leave Approval Request, and provides a copy of the military orders or a written statement from the appropriate officer.
- The DHS employee returns to work in accordance with USERRA guidelines.
- 1-30 days of service: Report next scheduled work day (after 8 hours rest plus normal travel time from military training site to DHS.)
- 31-180 days of service: Report within 14 days following completion of service.
- 181+ days of services: Report within 90 days following completion of service.
- Reporting time limits are extended up to 2 years when an employee is hospitalized or convalescing from an injury or illness caused by active military duty.
- The DHS employee has not been separated from service with a disqualifying discharge or under other than honorable conditions.
In general, the DHS employee may perform service in the uniformed services for a cumulative period of up to five years, under the current statute, and retain reemployment rights with the employer. USERRA creates the following exceptions to the five-year limit on service in the uniformed services:
- Service that is required beyond five years to complete an initial period of obligated service. Some military specialties require an individual to serve more than five years because of the amount of time or expense involved in training. If the employee works in one of those specialties, he or she has reemployment rights when the initial period of obligated service is completed.
- If the employee was unable to obtain orders releasing him or her from service in the uniformed services before the expiration of the five-year period, and the inability was not the employee's fault.
- Service performed to fulfill periodic National Guard and Reserve training requirements and includes service performed to fulfill additional training requirements determined and certified by a proper military authority as necessary for the employee's professional development, or to complete skill training or retraining.
- Service performed in a uniformed service if he or she was ordered to or retained on active duty under the following circumstances:
- Involuntary active duty by a military retiree
- Involuntary active duty in wartime
- Retention on active duty while in captive status
- Involuntary active duty during a national emergency
- Involuntary active duty for an operational mission, involuntary retention on active duty of a critical person during time of crisis or other specific conditions
- Service performed in a uniformed service if the employee was ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency
declared by the president or Congress, as determined by the secretary concerned
- Service performed in a uniformed service if the employee was ordered to active duty in support of a critical mission or requirement of the uniformed services as determined by the secretary concerned
- Service performed as a member of the National Guard if the employee was called to respond to an invasion, danger of invasion, rebellion, danger of rebellion, insurrection, or the inability of the President with regular forces to executed the laws of the United States.