COVID-19 has affected every aspect of our lives. While many of us civilians are ordered to stay home, thousands of members of National Guard across the nation have been activated to help deal with the threat. In the state of Colorado, as of to date 70 guardsmen have been called up to full-time status to help with COVID-19 response. Governor Jared Polis has asked for federal funding to exponentially increase the number of mobilized guardsmen. The Reserve components of the federal armed forces could also be mobilized to aid the national response.
Mobilized guardsmen and reservists will have to leave their regular civilian jobs to serve and when that happens, employers must be aware of various state and federal laws that protect military and emergency responder leave. It is worth noting that federal and state laws vary in the degree of protection they offer to mobilized servicemembers. Most mobilizations are federally funded consequently triggering protection under Uniform Services Employment and Reemployment Rights Act (USERRA).
USERRA applies to all employers, private, federal, state and local government. With respect to private employers, unlike some other statutes, there is no minimum number of employees that an employer must have in order to be obligated under USERRA.
When a service member is called up on active duty, commonly referred to “title 10 orders”, USERRA generally requires the employer to rehire the service member upon return from military duty. The service member must give notice of his or her mobilization, either written or verbal. In the current COVID-19 world, service members are being mobilized in a moment’s notice. This situation amounts to a military necessity that makes it impossible or unreasonable for the service member to give notice to his or her employer. Under these circumstances, the notice requirement is satisfied. The cumulative period of service must not exceed five years. In certain situations, service members must give notice of their intent to return to their civilian jobs. In general, if these procedural requirements are satisfied, the returning service member is entitled to the job that he or she had prior being mobilized.
However, USERRA provides an “out” for employers. The employer does not have to reemploy the returning service member at all if the employer’s circumstances have changed to the point where it would be impossible or unreasonable to do so or, in some cases, if it would impose an undue hardship on the employer. As the war against COVID-19 continues, the statewide travel bans, and mandatory business closures are forcing small business to lay off employees and file for bankruptcy. Mobilized service members should be wary of these circumstances. Mobilizing to help the nation in a time of need is a noble cause. However, the possibility of being laid off or terminated while mobilized is a real one. Employers may invoke the“hardship” exception when laying off or refusing to reemploy the mobilized service members.
USERRA and its state equivalent legislation prohibits discrimination because of mobilization or military service. Being aware of and complying with these requirements in handling mobilization requests protects employers from inadvertently violating these laws and exposing their business to litigation.
If you have one or more employees mobilized to respond to COVID-19, consult with counsel to gain a full understanding of existing requirements, and to ensure that all applicable legal obligations are met.