 | John Gibson
is a senior partner in the Wichita law firm of Gilliand & Hayes. He has been practicing law for nearly 30 years. In addition to healthcare law his practice includes wills, trusts, estate planning, probate and general representation of individuals and small business. Contact information: Phone:
316-264-7321; Fax: 316-264-8614; and e-mail: jgibson@boyerds.com |
Legal
2003-04-01 11:53:00
What do I face after IRAQ?
: I love my job, terrific benefits, and a great opportunity for advancement. I am also in the Kansas Air National Guard, and because of the situation in Iraq my unit has been put on notice it may be activated. Although my employer is patriotic and supports the military, he will have to put another person into my job if I go to active duty. My concern is my job status when I return from active duty in one or two years. Will I have a job? Will I lose my salary or seniority? What if I am wounded and can't return to work for three or four years?
ANSWER: You raise valid concerns, not only for employees that are military reservists and Guard members, but for their employers as well. There are potential hardships for both employee and employer. The questions you raise, however, are essentially answered in your favor. In 1994 Congress passed a law that makes it illegal for an employer to discriminate an employee serving in the military. The law requires that if a reservist or Guard member is activated, he or she is entitled to reinstatement upon return from service, including reinstatement of seniority and all benefits.For the benefit of the employer the law requires the military employee give a reasonable notice of the time of a call-up. Therefore, you should tell your employer immediately of any activation or possible activation information you have. The law also clearly states that the employer does not have to pay the employee while on military leave. When the employee returns from active duty there are set time limits which range up to 90 days (depending on length of service) to reapply for the job. You should check and determine the time period that you have to reapply when your tour of active duty is over. An employer is not required to keep a job open for more than five years, unless it is war time. If the military leave is more than 90 days the employer has the option to return the employee to a similar job, but does not have to give the employee back the same job.You asked the question about being wounded. The deadlines for requesting reinstatement may be extended for up to two years if the employee is recuperating from an injury incurred in military service. If the employee suffers a long term disability, the employer has an obligation to offer a reasonable accommodation to help the employee return to his or her job.You asked about seniority. As already stated you will have seniority reinstated upon return to work. In addition the law allows an "escalator principle" which requires that if the employee was to receive certain benefits as a result of seniority, reinstatement must be to the level he or she would have been at had he or she not taken leave. In other words, the seniority continues to accumulate while the employee is on military leave. The law also requires the employer to offer medical benefits on a continuing basis to the employee, for a period of at least 18 months, while the employee is on military leave. This allows for continued coverage for the family of the employee.The law is simply an attempt to help the employee not lose ground while on active military duty, yet not work too great a hardship on the employer. I hope this answers your questions.
