Many churches have one or more employees who are absent from work due to active military or National Guard duty. What responsibility does a church have to reemploy such persons when they later seek to return to their job? This issue is addressed by the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), which specifies that a person “who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer” on the basis of his or her military service or application for service. The law applies to all employers, including churches, whether or not they are engaged in interstate commerce and regardless of the number of their employees.
USERRA defines “service in the uniformed services” to include “active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty.” The law only protects employees whose military absences from an employer have not exceeded 5 years, with certain exceptions. An employee’s reinstatement rights depend upon the time he or she is away on military leave. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service. For service of more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service. Service members are able (but are not required) to use accrued vacation or annual leave while performing military duty.
Employees who temporarily are absent from work due to military service are permitted to make increased contributions to their employer’s qualified retirement plan (including 403(b) tax-sheltered annuities) to “make up” for the contributions they missed while away from their job.
This article first appeared in Church Treasurer Alert, February 2004.