Employer Support For The Guard and Reserve (ESGR)
ESGR Responsibility Synopsis
Employer Responsibilities
An employer must follow the regulations set forth by the Uniformed Services Employment and Reemployment Rights Act
(USERRA), which provides protection for initial hiring as well as adverse
employment actions by an employer if the action was motivated even in part by
the employee's military service. USERRA also extends to witnesses who assist or
testify in a USERRA investigation.
An employer can request documentation of military service after an employee has been absent for 30 consecutive days.
An employer must excuse an employee from work to attend inactive duty training
or annual training and must reemploy the employee as if he or she had never been
absent. If an employee has been called into active duty, upon returning the
employee is reinstated determined by priority, based on length of military
service. The rules are: Service of 1 to 90 days: (a) in the job the person would
have held had he or she remained continuously employed (possibly a promoted
position), so long as the person is qualified for the job or can become
qualified after reasonable efforts by the employer, or (b), if the person cannot
become qualified, in the position the person was employed on the date of the
commencement of the military service. Service of 91 or more days: (a) same as
for service of 1 to 90 days, or a position of like seniority, status and pay, so
long as he or she is qualified, or (b) if the person cannot become qualified, in
the position the person was employed on the date of the commencement of the
military service or which nearly approximates that position. An employer is not
required to pay an employee while on military leave, though many employers do
offer differential pay or a specific number of paid military days.
Employee Responsibilities
To be protected under USERRA, a member of the Army National Guard must have a civilian job, must provide timely
notification to employer of military duty and must report back to work in a
timely manner. USERRA does not apply to any state military duty or Governor
"Call-Ups", but protection is provided by state laws and statutes and, in most
instances, these are comparable to USERRA. An employer can not ask an employee
to reschedule drills, annual training, or any other military duty
obligation.
Employees are highly encouraged to notify employers of any
window of anticipated military activity, when application for orders is made, or
if notified of possible involuntary recall. An employee is not responsible to
find a replacement for his or her job responsibilities, nor will an employee be
required to make up time lost while on military leave.
Upon reemployment, an employee has 3 times the length of service (not to exceed 5 years) to make
payments on pension and thrift savings plans if so desired. The employer is
liable to fund any resulting obligation of the plan within the same time frame.
For health insurance benefits, if an employee is absent less than 30 days,
benefits continue as if he or she had not been absent. However, for 31 days or
more of absence, Cobra-like benefits will be available (for a period of up to 18
months). Health insurance must be reinstated the day an employee is reinstated
with no waiting period.
Time limits for returning to work depend on the duration of the orders. The rules are:
Service of 1 to 30 days: the beginning of the next regularly scheduled work period on the first full day
following completion of service and expiration of an 8-hour rest period
following safe transportation home.
Service of 31 to 180 days: application for reinstatement must be submitted not later than 14 days after
completion of military duty.
Service of 181 or more days: application for reinstatement must be submitted not later than 90 days after completion of
military duty.
Unit Responsibilities
The Unit Commander is responsible for providing the soldier with written or oral notification of all
periods of training. Notification should be in sufficient time to allow
employers to react and prepare for the employee's absence. Notifications should
be provided to the soldier for Annual Training and prior to going on duty,
unless precluded by military necessity.
Unit Commanders should also highly encourage soldiers to notify their employer of any "window" of
anticipated military activity, when application for orders is made, or if
notified of possible involuntary recall. Unit Commanders should be sensitive to
employer scheduling requirements when providing notification of training
requirements to the soldier. Where possible, units should schedule training
during calendar periods outside of peak business seasons and not during the most
popular vacation cycles.
Unit Commanders should also provide the soldier with as much notice as feasible for notification of completion/termination of
periods of extended active duty. Unit Commanders should encourage soldiers to
provide their employers with advance notice of anticipated times of returning to
work.
Dear Employer,
Greetings from the Employer Support of the Guard and Reserve (ESGR)! On behalf of the 350,000 men and women faithfully serving in
the Army National Guard, I commend you for the sacrifices you make to insure our
protectors of American freedoms can perform their duties without concern. During
the past 10 years, the active duty military has been reduced by over 40%, the
Guard and Reserve has been reduced by 29%. This is the "peace dividend"
resulting from the fall of the Soviet Union. However, regional instability in
many areas of the world has created large demands on the U.S. military to
support national policy. This has inextricably linked all employers of Guard and
Reserve to the national defense of our country. ESGR was created by presidential
proclamation to provide employers a point of contact within the Department of
Defense to assist and answer questions relative to the Uniformed Services
Employment and Reemployment Rights Act (USERRA).
For your convenience, listed below are key phone numbers for your use should you have questions
regarding the status of your Army Guard soldier. May I suggest keeping the
training calendar in your employee's records to help you in your manpower
planning. This gives you instant visibility when your soldier is away for
training or performing duties in the defense of our communities, state and
nation. Again, thank you for your shared sacrifices and endeavors to insure our
American heritage is secure.