Major Military Leave Overhaul Becomes Law

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Major Military Leave Overhaul Becomes Law

August 27, 2018

On August 26, 2018, Governor Rauner signed into law the Illinois Service Member Employment and Reemployment Rights Act (ISERRA). ISERRA takes effect January 1, 2019, and will require all Illinois public employers to revisit their military leave policies and practices.  
ISERRA repeals much of the preexisting patchwork of military leave laws that in many cases made compliance substantially challenging for public employers. Several of the more significant provisions of the ISERRA include the following:

• The benefits and protections of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) are incorporated by reference. Section 5-5. This means that employers can now rely on the considerable federal legal guidance to evaluate their legal responsibilities under Illinois law. Among other things, USERRA confers leaves of absence for periods of military service; the right to reinstatement following military service; and non-discrimination in employment, promotion or any benefit of employment.

• A uniform enforcement framework is also provided. ISERRA allows an employee to bring a private civil action, and allows the Attorney General to bring a lawsuit to enforce the provisions of the Act, following investigation and an opportunity for voluntary conciliation. Section 15-10. The law also authorizes recovery of attorney fees for plaintiffs and punitive damages of up to $50,000 per violation of the non-discrimination requirements of the law, Section 15-20, although it is unclear whether these damages can be levied against public employers. The law revokes any statute of limitations for actions to enforce the law. Section 25-5.

• Employee benefits during leaves of absence are also addressed, including a new protection that an employee on military leave be credited with an average performance evaluation rating based on the 3 years preceding the military leave, provided the average is not less than the rating on the evaluation just prior to military service. Section 5-5(3).

• Full salary continuation for annual training service for up to 30 non-consecutive days per calendar year is also included. Section 5-10(a).

• For periods of active duty, an employer must continue its contributions to an employee’s group health insurance premium, if the employee elects to continue employer-provided insurance benefits during a leave. Section 5-10(c).

• Employers must post a notice of rights and benefits under the Act. The law preempts home rule authority. Section 5-20.

The law also includes several unique provisions that actually benefit public employers:

• Consistent with existing law, ISERRA specifies that an employee is entitled to leave without conditions, although the law explicitly recognizes that employers can “bring concerns over the timing, frequency or duration of military leave to the attention of the appropriate military authority.” Section 5-5(2). The military authority is not required to accommodate any employer requests, however.

• The law excludes probationary periods from any time that is credited toward seniority or service requirements, although under USERRA interpretations, once an employee successfully completes a probationary period that is interrupted by military leave, the employee may be entitled to “retroactive” seniority benefits. Section 5-5(3).

• The law caps differential compensation for periods of “voluntary active service” at 60 workdays per calendar year. Section 5-10(b). The definition of “differential pay” remains largely the same as under the prior Illinois Military Leave of Absence Act; however, the ISERRA now clarifies that military pay is based only on those days the employee is paid by the military and that military pay for inactive duty, such as weekend drills, is based on the drill pay chart, not a daily rate.

ISERRA also contains rather specific definitions of “active service,” “voluntary active service,” “active duty,” and “involuntary active duty,” which establish the benefits to which employees are entitled. The level of specificity in defining covered service even extends to the discrete statutory provisions authorizing military service. As a result, it will be important for employers to check every employee military order in order to determine which protections apply and how to administer benefits during leave.  

In light of the variety of new rights and benefits found in the ISERRA, employers should consider taking the following steps before January 1, 2019: 1) adjust any military leave policies to reflect the new ISERRA provisions; 2) update practices for administering differential pay and health insurance during military leaves; 3) review how other benefits and employment practices are administered during military leaves; 4) obtain appropriate documentation of employees’ military service to determine the appropriate benefits; and 5) post the required notice. Employers should also monitor publications from the Illinois Attorney General’s Office, which is statutorily authorized to issue regulatory guidance regarding the ISERRA’s implementation.

Please contact a Clark Baird Smith LLP attorney for more information about the ISERRA and its application to employees who will be taking military leave after January 1, 2019.




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