Firms Have Obligations To Workers In Military

June 21, 2002
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GRAND RAPIDS — With the country’s response to the terrorist attacks well underway, employers could very well see a number of workers called up to active duty or even enlist in Operation Enduring Freedom. In fact, up to 50,000 members of the Armed Forces Reserves almost certainly will be called upon initially to serve the nation.

For employers, that call-up means company executives and public officials are faced with a whole new set of obligations to their employees who serve: job-related obligations that are mandated by federal law. Employees who are called to active duty or enlist also have a few requirements to follow in order to gain the workplace benefits the law allows them.

According to the law firm Miller, Canfield, Paddock and Stone, an employer must give workers on active duty a leave of absence from their jobs for up to five years. After that time period expires, an employer has to hold a specific job open for 90 days and is required to reinstate a returning worker to a position of similar seniority, status and pay.

There are certain circumstances that release a company from this obligation — disability is one. But if a returning worker was disabled during active service and is capable of performing other jobs within the firm, an employer must offer the employee a position that best reflects the seniority, status and pay level of the worker. Disabled employees have two years in which to return to work.

Employers are required to grant these rights to all non-temporary workers, regardless of whether they work full- or part-time. Contracted workers also have these rights for the duration of their agreement with the company. But re-employment rights don’t have to be extended to temporary workers.

Employers, however, can’t fire a reservist without cause during the first year of their re-employment. That holds true even if a company has an at-will provision in its employment standards. It also holds true for a contracted worker even if the agreement contains an at-will clause.

A company doesn’t have to pay a worker on active duty, but must offer health insurance coverage for 18 months. In addition, whatever benefits an employer offers workers who take a leave of absence must also be offered to those who are on active duty. And employers can offer employees on active duty more benefits than the law mandates.

“Most companies have a bare bones policy that says they do whatever the law requires them to do; however, Warner has had a number of employers indicate that they have or would like to go above and beyond the benefits mandated,” said Robert A. Dubault, an attorney with Warner, Norcross & Judd LLP.

“As companies begin to draft new policies, we are advising them to spell out their pay and benefit policies as specifically as possible, and to be consistent with other kinds of leave policies already in place,” he added.

As for employees, they must notify an employer of their call-up, as failure to do so could cost a worker protection under the law. After completing their tour, employees must apply for re-employment within 90 days of their discharge from the military or within one year of being released from a hospital if they were injured while on duty. And returning employees have to be discharged under either honorable, general, medical or hardship conditions in order to be eligible to receive these benefits.

Information regarding employee and employer responsibilities can be found at www.esgr.org

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