President George W. Bush recently called thousands of members of the National Guard and the Reserves to active duty in response to the terrorist attacks on the United States of America. As a result, many employers are now faced with regular requests for military leave from employees who are military reservists. Because there are military leave laws that provide job and benefit protection to employees called to active duty, it is a good time for employers to review their organization's military leave policies. Regardless of the state law that may apply to an employer's business, all policies, at a minimum, must comply with the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), the federal military leave law. Although USERRA supersedes state law, employees are required to provide benefits required by state law that are greater than those required by USERRA.

USERRA was enacted to encourage non-career military service by providing for prompt re-employment of eligible employees returning from active service and protection of employees called for active duty from discrimination in the workplace. It provides for military leaves of absence for the employee to perform a voluntary or involuntary duty in a uniformed service. Such duty includes active duty, training, full-time National Guard duty, "funeral honors" duty, and even fitness-for-duty examinations.

An employee on military leave has the right to use any accrued vacation or similar leave with pay accrued by the employee before the commencement of such service. However, an employer cannot require that the employee use accrued paid leave during the period of service. Additionally, an employee on military leave is entitled to enjoy any other rights and benefits not determined by seniority that are available to other similarly situated employees using nonmilitary leave.

All employers, regardless of the number of employees, must comply with USERRA which, in addition to leaves of absence, prohibits the denial of re-employment, promotion or any employment benefit because of the employee's military status. USERRA also requires that when an employee on military leave returns to the workplace, he or she must be treated as if there was not any break in service and is entitled to the seniority earned by the employee when called to active duty. COBRA-like coverage must also be provided pursuant to USERRA to all employees absent from work on military leave, regardless of whether the employee works for a company with less than 20 employees (COBRA only applies to employers with more than 20 employees). Restrictions on the cost of health coverage charged to the employee for coverage are also established by USERRA.

In addition to the above requirements, employees should also be aware that they may be subject to additional state law obligations. Pennsylvania's military leave law imposes requirements and restrictions similar to those of USERRA, including re-employment and seniority rights. Although a Pennsylvania employee, on a military leave of absence, may receive compensation during his or her absence, Pennsylvania law does not require an employer to provide such compensation. Furthermore, Pennsylvania law has a special provision in regard to public employees who are members of the Pennsylvania National Guard. Such employees are entitled to leaves of absence from their duties without loss of pay, time, or efficiency rating on all days during which the employee, as a member of the Pennsylvania National Guard, is engaged in active duty. In addition, such employees are entitled to a leave of absence from their employment without loss of pay, time, or efficiency rating on all days not exceeding 15 days in any one year during which the employee is engaged in Pennsylvania National Guard training or other military duty. These employees are additionally entitled to unpaid leaves of absence from their employment without loss of seniority or efficiency rating on all days in excess of the 15 days per year during which they shall be engaged in training or other duty under authorized orders. However, the Commonwealth, its instrumentalities and political subdivisions are authorized to provide paid military leave or other compensation and/or continue medical or other benefits to employees who are members of the Pennsylvania National Guard and other reserve components of the United States Armed Forces in excess of 15 days per year when the employee is engaged in training or other military duty under authorized orders.

Employers interested in reviewing and revising their military leave policies should contact their legal counsel or refer to USERRA at 38 U.S.C. § 4301 et seq., the United States Department of Labor web site at www.dol.gov and review any applicable state laws governing military leave.