Uniformed Services Employment and Reemployment Rights Act (USERRA)
Guidelines Concerning Health Insurance Coverage
The following information addresses employer-sponsored plans only as
individual coverage rules may be slightly different because of the absence of an
employer-sponsored plan.
Key Terms
Tricare – The health care plan sponsored by the government for active
duty military personnel. This coverage was previously called CHAMPUS.
Uniformed Services Employment and Reemployment Rights Act (USERRA)– The USERRA was enacted in 1994 in response to the needs associated with the military operations in Bosnia and Persian Gulf.
Activated – The term activated refers to the calling of a Guard or
Reserve soldier into active duty.
Provisions
- USERRA eliminates any distinction among the various types
of military service in determining re-employment rights
- Employees
must give advance notice of any type of military service
- USERRA includes
a 5-year maximum limitation on the cumulative length of absences
due to military leave
- USERRA indicates that a person’s discharge from
the military must be honorable for re-employment rights to apply
- When
employees are absent from military service lasting 31-days or more,
employers may require re-employment eligibility documentation
- Employers
of all sizes must accommodate persons with service-connected disabilities
- Employers
have a duty to make reasonable efforts to train or otherwise qualify
a returning service member for a position
- Reemployed persons are
guaranteed pension plan benefits that accrued during military service,
regardless of whether a plan is a defined
benefit plan or a defined contribution plan
- Benefit continuation of up to
18-months during military service (COBRA like health insurance coverage).
Unlike COBRA, this provision
would apply to those employers with fewer than 20 employees
- USERRA contains
a “double damages” provision for willful violations and allows aggrieved
employees to collect attorney’s fees
and expert fees
Maintaining Health Coverage
If a plan member was active for less than 31 days, that plan member
and dependents would be entitled to coverage under the group plan. The
plan member would not be subject to an increase in premiums over that
of a plan member considered to be an active employee of the group.
A group plan can elect to maintain coverage for a period longer than
30-days. If a group chooses to do this, the group coverage would be
primary over Tricare.
Terminating Coverage
Under USERRA, a group can cancel a plan member called to active duty
as long as the call to duty is for a period of time longer than 30 days.
Once a plan member has been activated for more than 30 days, the plan
member/dependents would be eligible for coverage under Tricare.
For those plan members who are activated for more than 30 days and
eligible for Tricare, USERRA provides continuation of coverage rights
(COBRA like coverage). These rights allow the member/dependents the
availability to continue coverage under the employer’s plan for up to
18-months. The employer may require the employee to pay up to 102 percent
of the premium for the continuation of coverage under the group plan.
In the event that a plan member on active military service of more
than 30 days elects continuous coverage along with Tricare, the group
plan continuous coverage would be primary over Tricare.
The cancellation date would be subject to the group’s cancel election.
If the group uses odd dates, the plan member and dependents would be
canceled the day the plan member enters active duty. If the group does
not use odd dates, the plan member and dependents would be canceled
effective the first of the following month.
Re-enrollment
Employers are obliged to re-employ any former employee who returns
to work after an Honorable Discharge from any uniformed service.
Applications for re-employment: Deadlines vary depending upon length
of duty:
| Length of Military Service Absence |
Re-Employment Application Deadline |
| Less than 31-days (or for
fitness exam)* |
Must report for re-employment
at the beginning of the first full regularly scheduled working
period on the first calendar day after completion of service and
expiration
of 8-hours time for safe transportation home.
|
| 31 to 180 days |
Employees have 14 days after they return
from service to apply for re-employment.
|
| More than 180 days |
Employees have 90 days after completion
of their service to apply for re-employment. |
|
*These time limits are extended by up
to 2 years if an individual is hospitalized or convalescing from
an injury caused by active duty. This 2-year period may also be extended
by the minimum time required to accommodate for circumstances beyond
the individual's control which make reporting within the time limits
impossible or unreasonable. |
Position Provided Upon Re-employment also varies by length of duty:
| Length of Military Service |
Applicable Position |
| Return from service of
1 to 90-days |
(1) Must be re-employed
in the job the person would have held had they remained continuously
employed so long as they are qualified, or can become qualified
after reasonable efforts by the employer, for the job; or
(2) If
the employee cannot become qualified for the position set forth
in (1), in the employee’s pre-service position so long as they
are qualified for the job or could become qualified after reasonable
effort by the employer; or
(3) If the employee cannot become qualified
for the position in either (1) or (2): in any other position
of lesser status and pay that the employee is qualified to perform,
with full seniority. |
| Return from service of 91 days or more |
(1) In the job the person would have
held had they remained continuously employed, or at a position
of equivalent seniority, status and pay, so long as the person
is qualified
or can become qualified after reasonable efforts by the employer;
or
(2) If the employee cannot become qualified for the position
in (1): in the employee’s pre-service position, or a position
of equivalent seniority, status and pay, so long as the person
is qualified
or could become qualified after reasonable efforts by the employer;
or
(3) If the employee cannot become qualified for the position either
in (1) or (2): in any other position of lesser status and pay
that the employee is qualified to perform, with full seniority. |
If a disability occurred during active service, the re-employment position
is governed by the following guidelines. USERRA establishes a three-part
priority for persons with service-connected disabilities.
STEP 1: Make reasonable effort to accommodate and to re-employee in
the same position as if employee had remained continuously employed.
STEP 2: Re-employ in position of equivalent seniority, status and pay,
so long as employee is qualified to perform the duties or could become
qualified with reasonable efforts by the employer.
STEP 3: Failing steps 1 and 2, the person must be employed in a position
that, consistent with the circumstances of the person’s case, most nearly
approximates the position contemplated under Step 2 in terms of seniority,
status and pay.
|
