The following is intended as non-technical guidance for implementation of the military leave requirements set forth in the Chapter 17.12 of the university's Operations Manual, Chapter 29A.28 of the Iowa Code, Chapter 581-14 of the Iowa Administrative Code, and Title 38 U.S.C. 4301-4333, the Uniformed Service Employment and Reemployment Rights Act (USERRA). It is for informational purposes only and should not be considered as a substitute for the language of the actual state and federal statutes.
In general, the intent of USERRA is to promptly return members of the uniformed services to their civilian employment upon completion of their service, with the seniority, status, and rate of pay they would have received had they remained continuously employed. State law and University policy extend the additional benefit of 30 work days of paid status per calendar year while on military leave.
USERRA and the Iowa Code section also applies to members of the National Disaster Medical System (NDMS), organized under the Federal Department of Health and Human Services, who volunteer intermittently when activated as federal employees, to provide medically-related assistance to victims of public health emergencies or when participating in authorized training. For NDMS employees, the return to work provision applies only to federal call-ups.
Employees must provide a copy of their military orders prior to their last day at work or as soon as written orders are published by their unit. These must be retained as a permanent record for no less than seven years or until the employee returns from military service.
Permanent and probationary staff members, when ordered to active duty (military or NDMS), are provided the first 30 work days of military leave in each calendar year without loss of pay. At the end of the paid military leave period, the individuals should be placed on unpaid leave for up to five years. Upon request, the individual may draw upon any accrued comp (merit) or vacation they may have, if they wish to remain in pay status for a longer period of time. This should be taken as a block of time, however, and not on an intermittent basis. The period of paid military leave would include any applicable shift premiums, as they are to serve without loss of pay during the initial period.
The initial period of paid leave (the first 30 work days of leave in each calendar year), is normally reflected on the employee time record or the leave adjustment record. A leave of absence form is not needed for the period of paid leave, if the time is recorded on a time or leave record. In this case, the leave of absence form should be processed only for the unpaid leave, commencing after the 30 work days without loss of pay has been exhausted. In contrast, the only cases where a leave form is generated for the period of paid leave is for those employees who do not have a time record or leave form available to record the paid military leave (e.g., graduate assistants). In such cases, a second leave would be required to convert the individual to unpaid military leave at the end of the paid leave period. Should employees remain on unpaid military leave into the next calendar year, they will again be eligible for another 30 work days with pay. Therefore, you may wish to make a notation to end the period of unpaid leave on Dec. 31 of the current year, and resume pay status on Jan. 1 the next year.
Alternatively, if a staff member resigns from employment for induction into military service, the employee shall be given 30 work days of pay in a lump sum in his/her last paycheck.
Vacation, Holidays, and Sick Leave During Military Leave
Upon request, employees may be paid a lump sum of their accrued vacation when inducted into the military service or called to active duty, if they resign their position at the university.
Military leave counts toward the calculation of FMLA eligibility, both in terms of the minimum of one year of employment, as well as the number of hours worked, based upon the percent of appointment at the time of the leave.
Employees will not accrue vacation, sick leave, or holidays while on military leave.
Employees will receive holiday pay for any holidays that occur during the first 30 work days of paid military leave.
The primary means to replace individuals on military and NDMS leave is either through reassignment of existing staff or through the use of temporary staff. In order to hire a permanent replacement, the unit would need to be able to hold a comparable position in order to provide for the return of the person on military or NDMS leave. Decisions about any permanent replacements should be reviewed at the college and/or divisional level, or through University Human Resources.
The employee entering active military service and his or her family members are eligible for military health and dental benefits under TRICARE. Information regarding TRICARE benefits may be obtained at www.tricare.mil, or call 800-538-9552 to confirm or establish eligibility.
Military employees receiving insurance under the university’s group plans may wish to continue that coverage. NDMS employees may continue their employer insurance coverage at the normal contribution rate during periods of NDMS training or service up to 30 days. For longer periods, the employee may elect coverage continuation at the full monthly premium cost. This continuation coverage ends on the day after the deadline for the employee to apply for reemployment. Upon return to the university job, insurance coverage is immediately reinstated.
Flexible Spending Accounts
Claims for flexible spending accounts may continue for the remainder of the calendar year until the accumulated funds are depleted.
All voluntary deductions cease during the period of leave without pay.
Employees who terminate employment are eligible to receive a distribution of their retirement funds.
Questions about retirement benefits should be addressed to IPERS at 515-281-0020. IPERS contributions will be made during the period of military leave with pay for up to 30 days. For example, if an individual has fifteen 15 days military leave, contributions will be made for 15 days.
Questions about retirement benefits should be addressed to TIAA at 800-842-2273. TIAA contributions will be made during the period of military leave with pay for up to thirty 30 days.
Common Questions About Military Leave
- Complete military service under honorable conditions, which does not include dishonorable/bad conduct discharge; dismissal of commissioned officer in situations involving court martial or by order of the president in time of war; dropping a commissioned officer from the roles due to absence without authority for more than three months or imprisonment by civilian court; and separation from service under other than honorable conditions.
- If requested by the employer, an employee who has been on leave for a period of 31 days or more must provide documentation establishing the timeliness of the employee’s reinstatement request, as well as the length and character of military service. If documentation if initially unavailable, the employer must re-employ the employee until documentation becomes available. If, after reemployment, the employer receives documentation establishing that one or more of the reinstatement requirements has not been met, the employer may discharge the employee, but only as of the date the documents are provided. The employer may not retroactively discharge the employee.
- If an employee is on military leave for 90 days or more, the employer may delay making any retroactive pension contributions until the employee submits satisfactory documentation. (Retroactive contributions, however, must be made immediately to persons from a military leave of 90 days or less.)
- If a former employee meets the requirements for reinstatement, the employer has an affirmative obligation to rehire him/her, except under limited circumstances.
- An individual on military leave in entitled to reinstatement to the position he or she would have attained but for the leave.
- If the employee has fewer than 91 days of military service, the employer must promptly reemploy, the person in the position he or she would have attained. The employee must be qualified for the job or have the ability to become qualified after reasonable efforts by the employer to qualify the person. If the employee is not qualified for the position he or she would have obtained, the employer must reemploy that person in the position he held prior to military service. If the employee is not qualified for the position he would have attained, or the position previously held, the employer must reemploy the person in the nearest approximation for which he is qualified, with full seniority.
- An employee with 91 or more days of military service must be reemployed in that position he would have attained as if he were continuously employed. The employee must be qualified for the position or able to become qualified after reasonable efforts by the employer to qualify the person. If the employee cannot become qualified for the position he would have attained, the employer must reemploy the person in his or her prior position, or in a position of equivalent seniority, status, and pay, so long as the person is qualified or can become qualified after the employer’s reasonable efforts. If an employee cannot qualify for the position he or she would have attained, his former position or a position of equivalent seniority, status and pay, the employee must be placed in a position of like seniority, status, and pay for which he or she is qualified, with full seniority.
- If an employee returns to work with a service-related disability, the employer must make reasonable efforts to accommodate the disability in the performance of the position the employee would have attained absent such service. If the employee is not qualified for that position despite any reasonable accommodations, the employee must be reemployed in a position of equivalent seniority, status, and pay for which he or she could become qualified or is qualified. If the employee cannot meet the qualifications of either of these two situations, the employer must reemploy him or her in the position that is the nearest approximation in terms of seniority, status, and pay. This disability requirement applies to all employers, regardless of size.
- Employer has a duty to provide refresher training and any other training needs to update the returning employee’s skills if the employee is no longer qualified due to technological advances. (Employers are excused from this training requirement if they can prove undue hardship, which has the same meaning as under the Americans With Disabilities Act.)
All private and public employers must comply with USERRA, regardless of the size of the employer.
USERRA applies to all employees who are absent from work due to “service in uniformed services.”
- Uniformed services include the following: the armed forces (Army, Navy, Air Force, Marines); the Army National Guard; the Air National Guard; full-time National Guard duty; the commissioned corps of the Public Health Service, and any other category of persons designated by the president in a time of war or national emergency.
- Service in the uniformed services includes performance of any of the following on an voluntary or involuntary basis: active duty; active duty for training; inactive duty for training; full-time National Guard duty; and absence from work for an examination to determine an individuals fitness for any of the above types of duty.
The cumulative length of an employee’s military leave of absence from employment may not exceed five years. The employee may accumulate five years of leave over the course of their employment with an employer.
Employers may not count certain leave towards the five year limitation. Leave employers may not count towards the limitation includes:
- Service required beyond five years to complete an initial period of obligated service
- Service from which an individual, through no fault of his or her own, is unable to obtain a release with the five-year limit
- Individuals involuntary retained on active duty
- Required training for reservists or National Guard members (includes two-week annual training sessions and monthly weekend drills mandated by statute for reservists and guard members)
- Service under an involuntary order to, or retention on, active duty during domestic-emergency or national-security-related situations
- Service under an order to, or retention on, active duty (other than for training) during a war or national emergency declared by the president or congress
- Active duty (other than for training) by volunteers supporting operational missions for which selective reservists have been ordered to active duty without their consent. Operational missions involve circumstances other than war or a national emergency for which, under presidential authorization, members of selected reserves may be involuntarily ordered to active duty for up to 270 days (e.g. Operations Desert Shield and Desert Storm).
An employer cannot refuse to grant leave to an employee because the employer believes that the length, timing, or frequency of an employee’s military obligations are unreasonable. Nothing in USERRA, however, prevents an employer and employee from working cooperatively to accommodate each other's needs.
Employees must provide advanced notice of a military service obligation orally or in writing. Employers may request that employees submit copies of their military orders, training notices, or induction information.
Employees need not provide advanced notice if military necessity precludes doing so or if it is otherwise impossible or unreasonable. (Military necessity is defined by regulations issued by the Secretary of Defense. These regulations are not subject to judicial review. Whether advanced notice is otherwise impossible or unreasonable is subject to judicial review.)
The timing of en employee’s reinstatement depends on the duration of his/her military service.
Note: If an employee is hospitalized or convalescing from a service related injury, these application times may be extended for up to two years. This two-year period may be further extended by the minimum time necessary to accommodate a circumstance beyond the person’s control which makes reporting within the two-year period impossible or unreasonable.
- Military service that is less than 31 days, or for purpose of taking a fitness for service exam: Employee must report for reemployment at the beginning of the first regularly scheduled workday that falls eight hours after he/she returns from service. If it is impossible or unreasonable to comply with this rule due to no fault of the employee, the employee must report back to work as soon as possible.
- Military service between 31 days to 180 days: Employee must submit an application to return to work no later than 14 days following his/her completion of service. If submitting an application within this period is impossible or unreasonable due to no fault of the employee, then the application must be submitted “as soon as possible.”
- Military service greater than 180 days: Employee must submit as application within 90 days after the completion of the military service.
An employee who fails to report back to work or reapply for employment within the applicable time period is subject to the employer’s unexcused absence policy.