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Leave of Absence – Military and Military Family

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POLICY

Aurora University provides employees who are members of the uniformed services of the United States of America granted leaves of absence in accordance with the Federal Uniformed Services Employment And Reemployment Rights Act of 1994 (USERRA), and any amendments to that act.

The primary purpose of USERRA is to assist employees with re-entry into the workforce after up to five years of voluntary or involuntary “service in the uniformed services.” It also grants to eligible employees certain rights in connection with pensions and other employee benefit plans.

Aurora University provides that employees who are spouses/partners or parents of a person called to military service shall be eligible for a protected leave of absence in specific situations, in accordance with Public Act 094-0589 of the State of Illinois (see Policy 339 regarding Family Medical Leave Act). This leave provision shall apply to all Aurora University employees, regardless of state of residence.

RELATED POLICIES
HR 339 Family and Medical Leave and Servicemembers Leave
HR 106 Americans with Disabilities Act/Reasonable Accommodations Process

ELIGIBILITY CRITERIA
In order to be eligible for these rights, employees must meet the following five eligibility criteria:

1. They must have held a civilian position with Aurora University before their service in the uniformed services;
2. They must have given notice to Aurora University that they were leaving the job for uniformed service (unless giving notice is precluded by military necessity or otherwise is impossible or unreasonable);
3. Their period of uniformed service must not exceed a cumulative total of five years during their employment (not including the exempted categories of service listed below);
4. They must not be released from uniformed service under dishonorable or other punitive conditions; and
5. They must apply for re-employment within specified time limits after return, ranging from eight hours (following service of less than 31 days) to 14 days (following service of between 32 and 180 days), to 90 days following return (after service of more than 181 days). However, these time limits may be extended for up to two years following the date of completion of service when an employee suffers service-related injuries that prevent him/her from applying for re-employment.

DEFINITIONS

“Uniformed Services”
The “uniformed services” include the Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service commissioned corps, and the reserve components of each of these services. USERRA rights also extend to employees who receive federal training or perform service in the Army National Guard and Air National Guard.

“Service in the Uniformed Services”
“Service in the uniformed services” includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guardsmen and reserve members. It also includes the time spent by an employee being examined to determine fitness to perform any such service. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered “service in the uniformed services”.

“Maximum Period of Service”
Time towards the maximum period of service includes only actual uniformed service time. An employee’s maximum period of service shall not exceed five (5) years except:

• Service required beyond five years to complete an initial period of obligated service;
• Service from which a person, through no fault of the person, is unable to obtain a release within the five-year limit;
• As required to fulfill additional training requirements determined and certified in writing by the Secretary concerned, to be necessary for professional development, or for completion of skill training or retraining; or
• Performed by a member of a uniformed service who is:
  • Ordered to or retained on active duty under section 688, 12301(a), 12301(g), 12302, 12304, or 12305 of title 10 or under section 331, 332, 359, 360, 367 or 712 of title 14;
  • Ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress as determined by the Secretary concerned;
  • Ordered to active duty (other than for training) in support, as determined by the Secretary concerned, of an operational mission for which personnel have been ordered to active duty under section 12304 of title 10;
  • Ordered to active duty in support, as determined by the Secretary concerned, of a critical mission requirement of the uniformed services; or
  • Called into Federal service as a member of the National Guard under chapter 15 of title 10 or under section 12406 of title 10.
• Travel time immediately preceding and following actual service are not included even if those periods may involve absences from the employment position for reasons that are service related, such as intermittent related time off as defined below.
• USERRA also allows an employee to complete an initial period of active duty that exceeds five years (e.g., enlistees in the Navy’s nuclear power program are required to serve six years).

“Intermittent Related Time Off”
An employee may need intermittent time off from work prior to military service for brief but repeated periods to put his/her affairs in order, and such periods may be necessary to, for example, interview child care providers, go to meetings with bank officers regarding financial matters or seek assistance for elderly parents. These intermittent times are covered and protected leave, but are not considered part of the five years. The duration of military service, the amount of notice supplied to an employee called to military service and the location of this service are all factors that influence the amount of time an employee may need in order to rest and/or put his/her affairs in order.

PROCEDURE

1. All employees called to active military duty or for reserve training must present written documentation to the immediate supervisor as soon as possible after notification. Paperwork should be attached to a Military Leave of Absence form when it is routed to Human Resources. If paperwork is not available, return the Leave of Absence form with as much information as possible. USERRA recognizes that it may be difficult or impossible for an employee to give advance notice to his/her employer. To accommodate these cases, the advance notice requirement may be excused by reason of “military necessity.” In light of access to cell phones, e-mail and other readily available sources of communication, it is expected that such situations will be extremely rare.

2.  

3. Determination of Military Compensation:
   1. Full-time employees who have been employed at least twelve months will be eligible for two weeks leave with adjusted pay for training periods of ten or more calendar days (up to ten days of pay each fiscal year) for annual training or other Reserve duties.
   2. In the event of war, national emergency, or other non-voluntary call to extended active duty, the employee will receive adjusted pay from the university for normally scheduled time during the first 30 calendar days of leave.
   3. Employees must provide a copy of the pay statement showing the dates of active duty and base pay for the period in order to receive adjusted pay.
   4. The university will pay the difference between the amount of basic pay received (military) and the employee's base pay exclusive of overtime. For example:
      1. Military basic pay $960.00 for 15 active duty days = $64.00/military daily rate
      2. Aurora University hourly rate $10.00 times 8 hours = $80.00/AU Daily rate
      3. 10 workdays missed: 10 days at $64.00 = $640.00 military pay
      4. 10 days at $80.00 = $800.00 AU pay
      5. $800.00 - $640.00 = $160.00 to be paid to the employee by Aurora University
   5. Payment will be made based on the employee's regularly scheduled hours.
   6. Vacation pay may be used for time needed in excess of the paid time. Those not eligible for paid time as described in A through D above may utilize accrued vacation time if available.
   7. Employees on short-term military leave (two weeks or less) will continue to accrue vacation and accumulate sick leave benefits (if eligible).

   8.  

4. Returning to work: Impact on the Returning Employee
   1. Managers should work with Human Resources to discuss how the returning employees will transition back into the workforce.
   2. The university will make reasonable efforts to accommodate the employee upon request if he/she returns with a disability. In that process, the university must comply with the ADA and state disability discrimination laws, as well as the USERRA. These laws require employers to make reasonable efforts to accommodate a returning employee’s disability or short-term injury. Under the USERRA, for example, if the employee cannot perform the particular job to which he/she is entitled to return, then the employer must provide the “nearest approximation” to the previous job in light of the limits of the disability.
   3. The university is not required to reemploy a person if:
      1. The university’s circumstances have so changed as to make such re-employment impossible or unreasonable;
      2. In the case of a person entitled to re-employment under subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313 of USERRA, such employment would impose undue hardship on the employer; or
      3. The employment from which the person leaves to serve in the uniformed services is for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue.

      4.  

5. Benefit continuation
   1. USERRA guarantees a re-employed individual pension plan benefits that accrued during his/her uniformed service in defined contribution plans. At the university, this means at the time of re-employment, the university will contribute to TIAA-CREF an amount equal to the matching portion the individual would have received during his/her leave if the individual contributes the corresponding matched portion. Any payment to the Plan described in this paragraph shall be made during the period beginning with the date of re-employment and may be spread over a period up to three times the period of the individual’s service in the uniformed services, such payment period not to exceed five (5) years.
   2. For purposes of computing the university’s liability or the employee’s contributions under this section, the employee’s compensation during the period of service shall be computed:
      1. At the rate the employee would have received but for the period of service, or
      2. In the case that the determination of such rate is not reasonably certain, on the basis of the employee’s average rate of compensation during the 12-month period immediately preceding such period (or, if shorter, the period of employment immediately preceding the period).
      3. Health insurance coverage will continue for the first 31 days of uniformed service, following which eligible employees will be offered COBRA -like benefits for up to 24 months. If university health care coverage is discontinued by the employee during his/her military service, he/she is entitled to immediate reinstatement of coverage upon re-employment with no waiting period or exclusion for pre-existing conditions.
      4. USERRA prohibits employers from forcing employees to use their vacation time for their period of uniformed service. The university offers use of vacation time as an option to the individual.
      5. Time spent on USERRA leave counts toward both the 12 months of employment and the 1,000 hours worked Family and Medical Leave Act (FMLA) eligibility requirement.

      6.  

6. Family of Military Leave Provisions
   1. The State of Illinois has enacted Public Act 094-0589, the Family Military Leave Act. This Act provides for up to thirty (30) days of unpaid family military leave to an employee during the time Federal or State deployment orders are in effect, subject to the conditions below. The employee may substitute paid vacation or personal time to cover the time off.
   2. The university will apply the provisions of Illinois Public Act 094-0589 to all eligible university employees, regardless of state of residence.
   3. Through this Act, the university will offer protected time off to the spouse/partner or parent of a member of the military called to service lasting longer than 30 days with the State or United States pursuant to the orders of the Governor or the President of the United States. The employee must meet certain qualifications:
      1. The individual must have been employed by the university for at least 12 months; and
      2. The employee must have worked least 1,250 hours during the 12-month period immediately preceding the leave.
   4. The eligible employee shall give at least fourteen (14) days notice of the intended date upon which family military leave will commence if the leave will consist of five (5) or more consecutive work days. Where able, the employee should consult with his/her supervisor to schedule the leave so as not to unduly disrupt the operations of the university.
   5. Employees taking military family leave for less than five (5) consecutive days shall give the supervisor and university as much advanced notice as is practicable.
   6. The university may require certification from the proper military authority to verify the employee’s eligibility for the family military leave requested.
   7. An employee shall not take unpaid leave as provided under this Act unless he/she has exhausted all accrued/accumulated vacation and personal leave.
   8. Employee Benefits Protections:
      1. Any employee who exercises the right to family military leave shall be entitled to be restored by the university to the position held by the employee prior to the leave or to a position equivalent in status, benefits, pay and other terms and conditions of employment. This section does not apply if the employer proves that the employee was not restored because of conditions unrelated to the employee’s exercise of rights under the Act.
      2. During any family military leave taken under this Act, the university shall make it possible for employees to continue benefits at the employee’s expense. 
         Updates to Federal or State law may supersede the guidelines set forth in this document.

Questions regarding this policy should be directed to the Human Resources.