Southwestern University (“University”) will allow excused absence for its employees to serve in that capacity, in accordance with the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), Public Law 103-353, the Texas Government Code, Section 431.005, and other state laws where applicable. Leaves of absence and reemployment rights are provided by the University based on these laws. To the extent that this policy may conflict with Federal statutes, the provisions of USERRA prevail.
This policy applies to all regular employees of the University. Employees in temporary positions are excluded from this policy.
Armed Forces: USERRA provides protection to members of the Uniformed Services, including Active Military, Reserve, and National Guard, including the Texas National Guard and the Texas State Guard.
Temporary Positions: Positions which are brief or non-recurrent, and that cannot reasonably be expected to continue indefinitely or for a significant period. Generally these are positions of less than one (1) year in duration.
An employee who is an officer or employee of the University and who is a member of the Uniformed Services is entitled to a leave-of-absence from the employee’s duties during periods that the employee is engaged in training or duty ordered or authorized by proper authority.
An employee or appropriate officer of the branch in the military in which the employee will be serving must give the employee’s supervisor or Department of Human Resources two (2) weeks’ written notice in advance of military service unless military necessity prevents the giving of notice or notice is otherwise impossible or unreasonable.
With respect to Reservists and members of the National Guard, the employee’s request must indicate which of the following options a) or b) listed below is selected for training periods:
- Designating the military training period as all or part of their vacation. In this case, employees receive their normal vacation benefits.
- Taking the employee’s normal vacation at another time. In this case, the employee will be paid the difference between his or her normal weekly gross pay and the military pay received, assuming their University pay is greater, up to a maximum period of 15 days per federal fiscal year. To be eligible for this option, employees must have completed one full year of continuous service with the University. Military pay is construed as including base pay plus special compensations (flight pay, etc.), but excluding allowances for travel, subsistence, dependents, etc.
- A University employee who is a member of the Uniformed Services and who is ordered to duty by proper authority is entitled, when relieved from duty, to be restored to the position that the employee held when ordered to duty.
- Military Service of 1 to 30 days – The employee must report back to work by the beginning of the first regularly scheduled work day that would fall 8 hours after the employee returns home from the place of military service. If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible.
- Military service of 31 to 180 days - The employee must apply for restoration to employment at the University’s Human Resources office not later than 14 days after military service is completed, or the next full calendar day when application becomes possible. The employee must also provide adequate documentation showing eligibility to return to work.
- Military service of more than 180 days - The employee must apply for restoration to employment at the University’s Human Resources office not later than 90 days after the military service is completed. The employee must also provide adequate documentation showing eligibility to return to work.
- The employee’s separation from military service must be under honorable conditions.
- The cumulative length of the absence and of all previous absences for Military Service cannot exceed 5 years with certain exceptions provided in USERRA. The two-week annual training sessions and monthly weekend drills mandated by statute for Reservists and National Guard members are exempt from the 5 year limitation.
- The University is not required to re-employ an employee if its circumstances have changed so as to make such reemployment impossible or unreasonable such as, for example, a reduction-in-force.
- The reporting or application deadlines will be extended up to two years for employees who are hospitalized or convalescing because of a service-connected illness or injury.
- If it is impossible or unreasonable for the employee to report or re-apply for work within the applicable time frame, the reporting or application period will be extended if necessary to accommodate a circumstance beyond the employee’s control.
- The University will apply its rules governing unexcused absences in cases where an employee fails to report to work or to apply for reemployment rights within the required time limits.
- Reemployment Position
An employee serving from 1 to 90 days will be re-employed in the position the employee would have held had the employee remained continuously employed, so long as the employee is qualified for the position or can become qualified after reasonable efforts by the supervisor to qualify the employee.
An employee serving 91 days or more will be reemployed in (i) the position the employee would have held had the employee been continuously employed, or (ii) a position of equivalent seniority, status, and pay, so long as the employee is qualified for the position or can become qualified after reasonable efforts to qualify the employee. If the employee is not, and cannot become, qualified under (i) or (ii), the employee may be re-employed in any other position of lesser status and pay that the employee is qualified to perform with full seniority.
The University may request that an employee, who was absent for a period of service of 31 days or more, provide reasonable documentation regarding the period of military service to show that the application for reemployment was timely, the employee has not exceeded the five-year limitation, and the employee’s discharge from service was not dishonorable. If documentation is unavailable, the employer must re-employ the employee. If documentation becomes available that indicates that one or more the reemployment requirements was not met, the employee may then be terminated. Where an employee was absent for 91 days or more, the University may delay making retroactive pension contributions until the employee submits satisfactory documentation of military service.
- Rights of Re-Employed Employees
Benefits will be continued during a military leave-of-absence according to applicable State and Federal regulations. Service members will be provided all rights and benefits not based on seniority to the extent that those rights and benefits are available to other employees on non-military leave, whether paid or unpaid. If there is a variation among different types of non-military leave, the most favored treatment will be accorded the service member.
If, prior to leaving for military service, an employee knowingly provides written notice of intent not to return to work at the University after military service, the employee waives entitlements to non-seniority leave-of-absence rights and benefits. The employee must be made aware of the specifics and benefits to be lost, or any waiver will be ineffective
Notice of intent not to return to work can waive only non-seniority leave-of-absence rights and benefits. Service members cannot surrender other rights and benefits that an employee would be entitled to under law, particularly reemployment rights.
- Health Benefits
Employees who have coverage under the University’s health plan may elect to continue such coverage during a military leave.
In accordance with USERRA, those employees performing service of less than 31 days will pay no more than their current employee premium. Employees performing military service of 31 days or more will pay no more than 102% of the full employee premium. The maximum period of coverage for an employee and the employee’s dependents is the lesser of: (i) 18 months from the day the absence begins; or (ii) the day after the date on which the employee fails to apply for or return to a position of employment within the timeframes specified in USERRA.
During any period of paid leave, the University will continue normal contributions towards the cost of benefits. When military service is unpaid, the employee will pay the cost of benefits. In addition, the employee will be eligible, upon return to work, to receive any general increases in pay, or any approved benefits that occur during their absence.
An employee who is performing military service may elect to make employee contributions or elective deferrals to the University’s pension plan, to the extent allowed by law. The amount may not exceed the amount the employee would have been permitted or required to contribute had he or she remained continuously employed during the period of military service. The employee contribution to the University’s pension plan may be paid either during the period of military service or upon reemployment.
The University will make reasonable efforts to accommodate an employee’s disability so that the employee can be reemployed consistent with the requirements under the USERRA unless such accommodation will be of such difficulty or expense as to cause undue hardship.
Southwestern University will take appropriate steps to ensure compliance with the reemployment rights extended to military personnel under the USERRA. Accordingly, employees who perform more than 180 days of military service before reemployment may only be discharged for cause for a period of one year from the date of reemployment. Employees who perform military service more than 30 days but less than 181 days before reemployment may only be discharged for cause for a period of 6 months after the date of reemployment. For purposes of this paragraph, a discharge is for “cause” if it satisfies two criteria of reasonableness: (i) it is reasonable to discharge the employee because of certain conduct; and (ii) the employee had fair notice, express or fairly implied, that such conduct would be grounds for discharge. Following the requisite 6 months or one year of reemployment, the Employee’s continued employment with the University will be on an “at will” basis.