USERRA
Question: We have an employee on Military leave for over 7 years. Can we term her?
FROM: MELINDA
INDUSTRY:UNKNOWN
Response:
Melinda,
This is a great question as the usual the limit under USERRA is 5 years. However, there are a number of exceptions to the five year rule and the five years is extended for a number of reasons.
I guess the other question I have is why would you want to terminate the individual on military leave? Is it costing you any money to continue to keep the individual on leave? My suggestion is to cross the bridge on re-hire when the employee is ready to come back to work.
Response from Melinda
Thanks for the information. The employee on military leave has never left our city and she has had two children since having been placed on leave. It’s not that we are eager to terminate her, we were just wondering. Also, is there a rule that they must accrue paid time off and illness paid while on military leave?
Response from Bob:
Melinda,
It sounds like you have a unique circumstance here. The fact that she had two babies during her military leave raises some questions that I do not have an answer for. Is the time spent on maternity leave from the military counted toward the five years? I am not sure how to answer this and the only thing I can tell you is to contact the Office of Veteran Affairs in Washington D.C. at 202-693-4700 and explain your circumstances.
As for accruing time, the answer is no you do not have to accrue any paid time off to her unless your policy allows employees on a leave of absence to accrue time off benefits during their leave.
Thanks for the challenging questions. I appreciate it.