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USERRA Protects Activated Guard Members and Reservists

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The United States depends heavily these days on 1.5 million members of the military reserves, National Guard and state guard units to help protect the country.

The Uniformed Services Employment and Re-employment Rights Act of 1994 protects the salaries and benefits of those reservists and guard members while they are on active duty.

USERRA, which replaced the Veterans Re-employment Rights Law, requires all public and private employersno matter what the sizeto give leaves of absence to employees who need time off to satisfy military obligations of five years or less, according to an analysis by Mark Budensiek, an associate with Rutan & Tucker L.L.P., a Costa Mesa, Calif., law firm.

Another section of USERRA sets out health coverage continuation rules similar to those that protect civilians who leave their employers under ordinary circumstances.

Reservists and guard members have the right to continue any health benefits for themselves and their dependents for up to 18 months after they go on active duty.

But employers can ask recalled reservists and guard members to pay up to 102% of the full cost of the health coverage.

A third section of USERRA deals with pensions.

An employer is supposed to increase the seniority of an employee reservist and continue making defined benefit plan contributions as if the employee were still on the job, according to William M. Mercer Inc., New York.

Employees must keep up contributions to their 401(k) plans to qualify for matching contributions from their employers. But USERRA gives employees who serve for 20 months or more five years to make up for any 401(k) contributions they missed while on active duty. Reservists recalled for periods of less than 20 months have a 401(k) grace period equal to three times the length of their tour, Mercer said.

Employers must continue to increase activated employees overall seniority, so that returning employees have the same number of sick days and vacation days that they would have had if they had not been activated.

Finally, employee reservists must be treated at least as well as employees out on other types of leave when it comes to continuation rights for disability insurance, life insurance and other employer-sponsored benefits, Mercer says.

Employers and their advisors can learn more about USERRA from the Reserve Officers Association Web site, at asp.

Reproduced from National Underwriter Life & Health/Financial Services Edition, October 8, 2001. Copyright 2001 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.

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