Legal Perspective

Give Them A Heroes' Welcome: New Rights for Veterans, New Obligations for Employers
By Mark Hanson & Todd Guerrero | August 01, 2005
America's men and women in uniform are putting their lives on the line in the Middle East and elsewhere around the globe. Some of these men and women are leaving and returning to jobs at biodiesel plants, soybean processing facilities and other enterprises. No matter the company or industry, one way employers can honor the sacrifices of returning veterans is by understanding the protections afforded to past and present members of the uniformed services as they return home and reenter the workforce.

Recently, the Veterans' Benefits Improvement Act of 2004 (VBIA) became effective. VBIA contains several important provisions designed to improve and enhance education, housing, employment, medical and other benefits for veterans. The act also amends the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) that offers service members employment and benefit protections when they are called to active duty and after they return home. VBIA creates two new requirements of significance to employers:

1. Extension of Maximum Period of Group Health Continuation Coverage
USERRA formerly permitted employees serving in the uniformed services to continue their group health coverage under an employer-sponsored group health plan for a period of up to 18 months. VBIA increases that maximum period from 18 months to 24 months, and applies to continuation coverage elections made on or after Dec. 10, 2004. Thus, if an employee covered by USERRA would lose group health coverage because of an absence due to his or her military service, under the new law that employee could elect group health plan continuation coverage for up to 24 months, beginning with the date of the employee's absence.

Similar to the Consolidated Omnibus Budget Reconciliation Act (COBRA), the employee cannot be required to pay more than 102 percent of the full premium for the coverage. If the employee's military service was for 30 days or fewer, the employee cannot be required to pay more than the normal employee share of any premium.

2. USERRA Notice Requirement
The Act also requires employers to notify employees of their rights, benefits and obligations under the law by posting a notice where they customarily place notices for employees. The notice is available for downloading from the Veterans' Employment and Training Service of the United States Department of Labor Web site at www.dol.gov/vets. Employers are now required to conspicuously post this notice in the workplace.

Because of these changes, employers' group health plan documents and summary plan descriptions that make reference to the 18-month group health continuation coverage period for employees on military leave need to be amended immediately to reflect the new 24-month continuation coverage period. Also, group health continuation coverage election forms for employees serving in the military need to be revised accordingly.

New laws
Several states have passed specific laws prohibiting employers from discriminating against applicants for employment based on military service, including prohibition against asking about an applicant's guard or reserve status. Employers may need to revise their application forms to comply with these new laws.

New regulations
The U.S. Department of Labor has published draft regulations that interpret USERRA. These regulations will more clearly define the rights of returning service men and women, and the responsibilities of employers to honor their military service. For example, the regulations will prevent against discrimination and retaliation because of military service. They will also prevent service members from suffering disadvantages due to performance of their military obligations and afford them ample time to report back to their jobs following completion of their service obligations. If the draft regulations are passed, the department plans aggressive outreach and enforcement.

To find out more about USERRA, employers can visit the Department of Labor Web site at www.dol.gov/vets or call (866) 487-2365. Another source of information about rights and benefits of service personnel is www.esgr.org.

Mark Hanson and Todd Guerrero are members of the Agribusiness and Alternative Energy Practice Group of Lindquist & Vennum PLLP, a leading provider of legal assistance on bioenergy projects throughout the country. Nancy B. Vollertsen, chair of the firm's Employment Law Practice Group, contributed to this article. They can be reached at (612) 371-3211.
 
 
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