My first one - EE joined Natl Guard - 4 months training. Group health providers required termination of medical, life, and dental coverage
when EE entered active duty 8/15. What's the best practice - to show EE on Military leave, terminate employment and reactivate upon reemployment if same or like position is available? I want to use the most simple but compliant process.



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  • We code as a military leave of absence and don't forget to offer COBRA. When he returns, he has to be reinstated in all things, including raises, 401k matching, etc, as though he was not gone.
  • Tks. I think I have to issue a USERRA form similar to COBRA also.

  • Yes. There is an election notice under USERRA that you will have to issue. It is different than the normal COBRA election notice.
  • Remember that they get insurance for the first 30 days of duty. USERRA mandated insurance coverage is not COBRA as leaving for military duty is not a COBRA event. However, the rate is still 1002% of cost. Military leave has been likened to an escalator. When the person returns, it is to their place as though the escalator kept right on moving and we put them right back on their step.
  • I've read until I'm blind.....
    our medical insurance underwriter says coverage stops upon transition to active duty. EE says military insurance coverage kicks in the first day of duty...
    so I don't issue COBRA notice? just the USERRA?

    Who pays for the 30 days of coverage? EE? If he has military, he's not going to pay for the secondary coverage.

  • My sympathies are with you. Section 1002.166 of 20 CFR states that if a person serves for less than 31 days that they cannot be required to pay more for insurance than the premium usually paid by workers. The employer must pay this cost (an example would be two or three weeks at summer camp for a reservist). If they serve 31 days or more, they can be required to pay up to 102% of the cost with the administrator given the responsibility for reasonable procedures for notice, election, and so forth. (I would try to mirror COBRA procedures here rather than reinvent the wheel).

    Now, an argument could be made that if, by orders, you know somebody is serving more than 30 days that they should be dropped from day one. An argument can also be made that you do not know for sure whether somebody will be serving over 30 days until they actually do so. I give them the first 30 days to be on the safe side.

    Hope this helps.

  • YAKLEY: Our way of showing an employee out on Military Leave of absence is through our coded group of response pertaining to our employee pay checks. ML is the designation for an USERRA event.

    COBRA election must be offered and yes the employee will most likely not take COBRA due to the expense and the fact that it is not necessary for he/she might not need it because they are covered medically by the active duty medical teams.

    Life and dental issues must be, likewise, executed in accordance with your "plan documents".

    Do not terminate from employment! That is a "Quid Pro Quo" act/event that might and could be used against your company by slick attorneys associated with USERRA. Simply move the employee from any active production position, transferring the ee into an administrative position in the HR department. This way his accountability for time and cost associated with any expense for benefits that he/she remains entitled to receive upon his/her return to active service with your company. Our medical plan and life insurance pick right up on the first day he/she returns for both family and single coverage.

    Holidays, vacation, sick time, PTO, continue to roll on as if they are right here and working. If one employee is entitled, then all civilian soldiers, marines, sailors, and airmen are also entitled. They remain entitled until they exceed the limitations of USERRA for reporting back to your company and seeks an application for re-turn to active daily employment. We presently have two soldiers out on ML of absence and the "pot of gold" that they missed while deployed for training or war is accumalating. Only after they exceed the return to active company service in the proper amount of time will the ee get the "pot of gold". One soldier has been gone for better than a year!

    There is lots of discussion on this matter within the contents of this forum, I recommend you search USERRA on-line and get a copy of their procedures for the employer's use.


    I have been really busy with the selection, hiring and training of a new HR Assistant. I am beginning to recoup some of the HR time that i could use for me to read and respond here, accordingly.
  • Not to make a confusing issue more confusing, but you need to treat an employee out on military leave the same as if you granted a leave of absence to another employee. Thus, if an employee out on leave of absence would get sick days, holidays, vacation accrual, etc., then the person out on military leave would get the same. However, if your person on a leave of absence gets no paid time off or accruals, then the person on military leave would not get it either. With this, you still must remember the escalator theory.

    For example, John goes on military leave. Your employees go from two weeks of vacation to three weeks at five years of service. John goes at four years and is gone a year. When he comes back, he would get the three weeks of vacation as you are putting him back right where he would have been. However, he does not also receive the two weeks of vacation that would have been given him had he worked (unless other employees on leave of absence receive the same).

    The USERRA advisor for employers is a good place to research some of these issues. Good luck.
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