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.