On April 1, 2020, U.S. Defense Secretary Mark Esper said that states have the option of using the National Guard to enforce stay-at-home orders amid the coronavirus pandemic. He compared having the National Guard deal with the coronavirus to its duties when a hurricane or another natural disaster strikes the country, saying the force would be used to curb the outbreak’s effects.
How does this affect employers? National Guard members (and National Disaster Medical System reservists) are protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA, which applies to virtually all U.S. employers, regardless of size, and covers nearly all employees, including part-time and probationary employees, protects the job rights of individuals who voluntarily or involuntarily leave employment positions to perform service in the uniformed services. Under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered “service in the uniformed services.” Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.
USERRA requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. While an employee should provide notice as far in advance as is reasonable under the circumstances, in the current environment, you should not expect employees to be able to provide much advance notice for COVID-19-related service.
If you have an employee in the National Guard who is serving for COVID-19-related reasons, they will be deemed to be on a furlough or leave of absence and entitled to the non-seniority rights and benefits accorded other similarly situated individuals on non-military leaves of absence. They will be able (but are not required) to use accrued vacation or annual leave while performing military duty. In addition, USERRA requires employers to continue health and pension plan coverage depending on the length of service: for service of less than 31 days, you must continue health care coverage as if the employee had remained employed; for service of more than 30 days, the employee may elect to continue employer-sponsored health care for up to 24 months, but they may be required to pay up to 102 percent of the full premium.
When the employee completes their service, they must apply for reemployment or report back to work within certain timeframes dependent on how much time they spent on military duty. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period. For service of more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.
When the employee returns from their National Guard service, you must reemploy that employee in the job that they would have attained had they not been absent for military service (the “escalator” principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. Pursuant to USERRA, an employer cannot deny employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation. In addition, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.