Congress enacted the Uniformed Services Employment and Reemployment Act (USERRA) legislation to protect the rights and benefits of employees who leave their civilian jobs to perform service in the military. In general, USERRA establishes employment and reemployment rights and benefits protections for returning military personnel and prohibits discrimination by employers against veterans, members of the military services and applicants for military service. USERRA applies to all employers, regardless of size, including foreign employers doing business in the United States, and covers full-time, part-time, seasonal and temporary employees.
Health Insurance Continuation
If you take a military leave, whether for active duty or for training, you are entitled to extend your health coverage for up to 24 months as long as you give your Employer advance notice of the leave, unless military necessity prevents this, or if providing notice would be otherwise impossible or unreasonable. If your coverage would otherwise end because of your military tour of duty, you and/or your covered dependents may be able to continue that coverage under the Employer/Plan Sponsor’s benefit plan for up to 24 months while you continue to be in military service.
Payment for Coverage
USERRA coverage is similar to COBRA continuation coverage in that the employee must make an election for coverage and may be required to pay up to 102% of the full premium for the coverage elected during the leave. Even if you don’t elect to continue coverage during your military service, you have the right to be reinstated to the benefit plan coverage when you are reemployed, generally without any waiting period or exclusions (for example, pre-existing condition exclusions), except for service-connected illnesses or injuries. For military service of less than 31 days, health care coverage is provided as if the service member had remained continuously employed.
Your total leave, when added to any prior periods of military leave from Employer cannot exceed five years. There are a number of exceptions, however, such as types of service that are not counted toward the five-year limit — including situations where service members are involuntarily retained beyond their obligated service date; additional required training; federal service as a member of the National Guard; and service under orders during war or national emergencies declared by the President or Congress. Additionally, the maximum time period may be extended due to your hospitalization or convalescence following service-related injuries after your uniformed service ends. If the entire length of the leave is 30 days or less, you will not be required to pay any contributions. If the entire length of the leave is 31 days or longer, you may be required to pay up to 102% of the full amount necessary to cover an employee (including any amount for dependent coverage) who is not on military leave.
Termination of Coverage
If you take a military leave, but your coverage under the Plan is terminated — for instance, because you do not elect the extended coverage — when you return to work at Employer you will be treated as if you had been actively employed during your leave when determining whether an exclusion or waiting period applies to health plan coverage. USERRA permits a health plan to impose an exclusion or waiting period to an illness or injury determined by the Secretary of Veterans Affairs to have been incurred or aggravated during performance of service in the uniformed services. If you do not return to work at the end of your military leave, you may be entitled to purchase COBRA continuation coverage if you extended benefits for less than 18 months. However, your military leave benefits continuation period runs concurrently with your COBRA coverage period, subject to the limitation of COBRA. This means that COBRA coverage and USERRA coverage begin at the same time. If you do not return to work at the end of your military leave, you may be entitled to continue COBRA continuation coverage for the remainder of the COBRA continuation period, if any. In other words, any continuation of coverage under USERRA will reduce the maximum COBRA continuation period for which you and/or your dependents may be eligible. Your rights under COBRA and USERRA are similar but not identical. Any election that you make pursuant to COBRA will also be an election under USERRA, and COBRA and USERRA will both apply with respect to continuation coverage elected. If COBRA and USERRA give you (or your covered spouse or dependent children) different rights or protections, the law that provides the greater benefit will apply.