MARION COUNTY BOARD OF COMMISSIONERS

Board Session Agenda Review Form

Meeting date: March 31, 2021

Department: Human Resources Agenda Planning Date: Time required: 15min

Contact: Michelle Shelton Phone: 503-589-3285

Audio/Visual aids N/A

Department Head Signature:

TITLE Policy 305 Protected Leave & USERRA Guide

Issue, Description & Background Policy 305 revision & creation of up-to-date USERRA (Military Leave) Guide

Financial Impacts: None

Impacts to Department & External Agencies None

Options for Consideration:

Policy revision regarding exempt employees utilization of accruals while on protected leave & creation of up-to-date USERRA (Military) Guide to supplement existing policy.

Recommendation: Approve as proposed

List of attachments: Marion County Protected Leave Policy 305, USERRA Military Leave Guide

Presenter: Michelle Shelton and/or Leslie Martin

Copies of completed paperwork sent to the following: (Include names and e-mail addresses.)

Copies to:

BEFORE THE BOARD OF COMMISSIONERS

FOR MARION COUNTY, OREGON

In the matter of a revision to ) Administrative Policy 305, ) Protected Leave and creation ) of USERRA Leave Guide )

ORDER No.

This matter came before the Marion County Board of Commissioners at its regularly scheduled public meeting on Wednesday, March 31, 2021 to consider the adoption of revised administrative policies.

WHEREAS the Board adopted Policy 305, Protected Leave in September 2002, requiring regular review and update as necessary; and

WHEREAS the Board finds it appropriate to accept the revisions to Administrative Policy 305; and

WHEREAS the Board finds it appropriate to approve the newly created USERRA Military Leave Guide as a supplement to Administrative Policy 305; now therefore,

IT IS HEREBY ORDERED that Marion County Administrative Policy 305 and the USERRA Military Leave Guide, attached hereto, are adopted.

DATED at Salem, Oregon this 31st day of March 2021,

MARION COUNTY BOARD OF COMMISSIONERS

Chair Commissioner Commissioner

ADMINISTRATIVE POLICIES

SECTION: Human Resources POLICY #: 305

TITLE: Protected Leave PROCEDURE #: 305-A

ORDER #: 17-151

DEPT: Human Resources PROGRAM: Benefits

ADOPTED: 09/02 REVIEWED: REVISED: 3/21

PURPOSE:

The purpose of this policy is to define the provisions and processes for eligible employees to take protected leave for qualifying medical and family circumstances. This policy is intended to comply with the federal and state laws regulating the leaves of absence.

AUTHORITY:

The Marion County Board of Commissioners may establish rules and regulations in reference to managing the interest and business of the county under ORS 203.010, 203.035, 203.111 and 203.230.

The Marion County Board of Commissioners expresses the governing body’s official, organizational position on fundamental issues or specific repetitive situations through formally adopted, written policy statements. Policy statements serve to provide rules for public officials on the conduct of county business.

Marion County Administrative Policies and Procedures outline the methods through which the Board of Commissioners takes formal action on administrative policy. They are the official record of county administrative policy.

APPLICABILITY:

All county employees.

GENERAL POLICY:

Marion County provides protected leave for qualifying employees in the form of family, medical, domestic violence, and military leave in conformance with the Family and Medical Leave Act (FMLA), Oregon Family Leave Act (OFLA), Oregon Victims of Certain Crimes Leave Act (OVCCLA), Oregon Military Family Leave Act (OMFLA) and The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

SUBJECT: PROTECTED LEAVE

305.2

305.1 DEFINITIONS: Bereavement Leave: Leave for the death of a family member in order to attend the funeral or alternative to a funeral of a family member; make arrangements necessitated by the death of a family member; or, for the process of grieving the loss of the family member. Crime Victim: A person who has suffered financial, social, psychological, or physical harm as a result of a crime covered by OVCCLA as defined in OAR 839-009-0340(4). Exigency Leave (National Guard or Reserves): 1. For a short-notice deployment, meaning a call or order that is given no more than seven

calendar days before deployment (the employee can take up to seven days beginning on the date of notification);

2. For military events and related activities, such as official military-sponsored ceremonies and family support and assistance programs sponsored by the military and related to the family member’s call to duty;

3. For urgent (as opposed to recurring and routine) child-care and school activities, such as arranging for child care;

4. For financial and legal tasks, such as making or updating legal arrangements to deal with the family member’s active duty;

5. For counseling for the employee or his/her minor child that is not already covered by the FMLA;

6. To spend time with the covered service member on rest and recuperation breaks during deployment, for up to five days per break;

7. For post-deployment activities such as arrival ceremonies and reintegration briefings or to address issues from the service member’s death while on active duty; or,

8. For other purposes arising out of the call to duty, as agreed on by the employee and employer.

Family Member: 1. FMLA defines family members to include the employee’s spouse, parent, son or daughter. A

“spouse” is the husband or wife of the employee. A “parent” is the biological or legal parent or one who is in loco parentis. Son and daughter are defined as a biological, adopted or foster child; a legal ward; or a child of a person standing in loco parentis, under the age of 18, or older if incapable of self-care because of mental or physical disability.

2. OFLA defines family members to include parents, spouses, children, same gender domestic partner, custodial parent, non-custodial parent, adoptive parent, parent in law, foster parent, biological parents, step-parent of same gender domestic partner, grandparent, grandchild, a person whom the employee is or was in a relationship of in loco parentis, biological, adopted, foster or step children of an employee’s same gender domestic partner.

Parental Leave: OFLA provides leave during the year following the birth, of a child, adoption, foster placement of a child under 18 or a child 18 or older if incapable of self-care due to a mental or physical disability. Marion County does not allow parental leave to be taken as intermittent or reduced schedule leave.

SUBJECT: PROTECTED LEAVE

305.3

Pregnancy Disability: FMLA and OFLA cover a variety of absences related to pregnancy or childbirth incapacity and routine prenatal visits to healthcare providers.

Serious Health Condition: Illness, injury, impairment or other physical or mental condition that requires inpatient care, hospice, continuous treatment by a health care provider involving a period of incapacity, regular absence of more than 3 consecutive calendar days or a chronic, long term condition; absence to receive treatments including recovery period. A serious health condition leave can be continuous, intermittent or require a reduced schedule. Serious Injury or Illness in the Line of Duty: FMLA defines serious injury or illness that must have occurred or been aggravated while in the military; and, the veteran must be undergoing medical treatment, recuperation, or therapy for the serious injury or illness that occurred any time during the five years preceding the date of treatment. Leave can be designated for spouse, parent, child, or next of kin of current military personnel or veteran. 1. Service in the Uniformed Services: The performance of duty on a voluntary or involuntary

basis in a uniformed service. 2. Sick Child Leave: OFLA allows time off to any eligible employee whose child requires home

care for an illness or injury that is not a serious health condition. Sick child leave is not for routine medical or dental appointments, or because school is not in session, or for other child care issues.

3. Uniformed Services: Consists of Army, Navy, Marine Corps, Air Force, Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, Coast Guard Reserve, Army National Guard, Air National Guard, Commissioned Corps of the Public Health Service; and any other category of persons designated by the President in time of war or emergency.

Week: For purposes of protected leave, a week is the employee’s normal workweek schedule. Marion County will count family medical leave from the first day of absence under the qualifying purpose.

Year: For the purposes of protected leave, the 12-month period begins on the first day an employee begins protected leave. Marion County will count family medical leave from the first day of absence under the qualifying purpose. POLICY GUIDELINES: 1. RESPONSIBILITIES

1.1. Federal and State Laws:

1.1.1. Family Medical Leave Act (FMLA): A federal law that provides unpaid protected leave (up to 12 weeks or 480 hours) for serious health conditions of employees and their family members, the birth, adoption or foster care placement of a child, and leave time for pregnant employees to seek prenatal and postnatal care.

SUBJECT: PROTECTED LEAVE

305.4

1.1.2. Oregon Family Medical Leave Act (OFLA): A state law that provides unpaid protected leave for serious health conditions of employees and their family members, the birth, adoption or foster care placement of a child, bereavement leave, and leave time for pregnant employees to seek prenatal and postnatal care. The Oregon law is more comprehensive, allowing more than 12 weeks or 480 hours per year under certain conditions.

1.1.3. Victims of Certain Crimes Leave Act (OVCCLA): This act is an extension of the OFLA and provides leave for an employee who is the victim of domestic violence, harassment, sexual assault, or stalking; or is the parent or guardian of a minor child or dependent who is the victim of domestic violence, sexual assault, or stalking. Leave may be used to seek legal or law enforcement assistance, to seek remedies to ensure health and safety, to seek medical treatment for injuries or to recover from injuries, to obtain counseling, to seek other domestic violence services, to relocate or secure existing housing, or to attend criminal proceedings related to these circumstances.

1.1.4. Oregon Military Family Leave Act (OMFLA): This act is an extension of OFLA and provides up to 14 calendar days of leave per deployment for a spouse or same-sex domestic partner of a member of the Armed Forces of the United States, the National Guard, or the military reserve forces.

1.1.5. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects civilian job rights and benefits for veterans and members of reserve components.

1.2. Qualifying Purposes for Leave: 1.2.1. Marion County designates leave based on qualifying conditions. Employees

who qualify may be designated for protected leave in the following situations: 1.2.1.1. When the employees’ own serious health condition prevents them

from performing the essential functions of their job. 1.2.1.2. The birth of a child or adoption of a child under the age of 18

(including the legal placement of a foster child under the age of 18).

1.2.1.3. Continuous parental leave within 12 months of the event. 1.2.1.4. To care for a family member with a serious health condition as defined

by OFLA or FMLA. 1.2.1.5. To provide home care for a child under the age of 18 with a nonserious

health condition. 1.2.1.6. To care for a spouse, parent, child, or next of kin who is a covered

service member or veteran. The covered service member or veteran must have a serious injury or illness incurred or aggravated while on active duty (leave must begin within five (5) years of the veteran leaving military service).

1.2.1.7. For an exigency leave related to a spouse, child, or parent of a covered service member who is on active duty, called to active duty, and during leave from deployment.

1.2.1.8. To seek legal assistance, medical treatment, counseling, or to relocate or secure an existing residence when the employee is a victim of a crime covered by OVCCLA; or the parent or guardian of a minor child or dependent who is the victim of a crime covered by

SUBJECT: PROTECTED LEAVE

305.5

OVCCLA. 1.2.1.9. To attend a criminal proceeding as a victim of a crime covered by

OVCCLA; or the parent or guardian of a minor child or dependent who is the victim of a crime covered by OVCCLA

1.2.1.10. In accordance with USERRA, leave for uniformed service up to 30 days.

1.3. Eligible Employees: 1.3.1. Eligible employees under Oregon protected leave laws are:

1.3.1.1. Full-time or part-time employees who meet the qualifying purposes for leave and the following criteria: 1.3.1.1.1. Have been employed by Marion County for at least 180

days (26 weeks) or more before the first day of the protected leave; and, have worked an average of 25 or more hours per week for Marion County as of the day before the request for leave is made.

1.3.1.1.2. This average will be calculated over the 180 days preceding the request for leave.

1.3.1.1.3. For the purpose of taking leave in the event of the birth or adoption of a child, or the legal placement of a foster child, an employee does not need to meet the hours requirement.

1.3.1.1.4. For leave related to a spouse being called to active duty, the employee must have worked an average of 20 or more hours per week for Marion County.

1.3.1.1.5. Employees who are victims of or at risk of domestic violence, sexual assault, or stalking, regardless of how long he or she has worked for Marion County and regardless of how many hours per week the employee works.

1.3.2. Eligible Employees under FMLA have been employed by Marion County for a total of at least 12 months (does not need to be consecutive) and have worked at least 1,250 hours during the 12- month period immediately preceding the family medical leave.

1.4. Request for Protected Leave: 1.4.1. Request and notifications for leave should be made in accordance with

departmental standards. 1.4.2. Anticipated situations:

1.4.2.1. In situations where the need for protected leave is known, employees are expected to give 30 days’ advanced notice to take protected leave.

1.4.2.2. If the anticipated leave is known less than 30 days in advance, employees must give notice as soon as practicable. 1.4.2.3. Upon notice, the county will provide the employee with a

Protected Leave Request Form. All employees are required to complete a Protected Leave Request Form and submit the completed certification prior to the commencement of protected leave.

SUBJECT: PROTECTED LEAVE

305.6

1.4.2.4. An employee who intends to take leave to attend a criminal proceeding must give reasonable notice of the impending leave once the employee has received official notice of the proceeding.

1.4.2.5. An employee who intends to take domestic violence-related leave must give reasonable notice of the impending leave unless giving advance notice is not feasible (see Section 1.4.3).

1.4.2.6. Unless giving notice is impossible or precluded by military necessity, an employee who intends to take military-related leave must give notice within five business days of receiving official notice of an impending call or order to active duty, or of a leave from deployment.

1.4.3. Unanticipated Situations: 1.4.3.1. In an unanticipated or emergency situation in which there is no

opportunity to give notice, employees must notify their supervisor verbally within two working days of the emergency situation. The required paperwork must be completed and returned as soon as is practicable. Notice may be provided by a family member or other individual when an employee is unable to provide notice.

1.5. Certification/Designation: 1.5.1. Certification of Need: A certification of the need for protected leave may be

required. 1.5.1.1. In the event of a serious health condition of an employee or that of a

family member, certification must be provided by a medical professional on the applicable certification form within 15 calendar days of the request for family medical leave. Failure to provide required medical certification may delay the start of family medical leave or may cause the denial of family medical leave. The employee may be required to furnish the county with periodic recertification as frequently as every 30 days.

1.5.1.2. In the event of a request for parental leave to care for a newly adopted child or a newly placed foster child, the employee may be required to provide verification from the agency representative regarding the adoption or placement of the child.

1.5.1.3. In the event of a request for domestic violence-related leave, the employee may be required to certify that he/she qualifies for leave and that the leave is to be taken for an authorized purpose.

1.5.1.4. In the event of a request for leave to attend criminal proceedings, the employee may be required to provide copies of the notice of the scheduled proceedings.

1.6. Intermittent or Reduced Schedule: 1.6.1. When medically necessary, protected leave may be taken on an intermittent or

reduced schedule. Details of the proposed schedule must be verified by the certifying medical professional on the applicable certification form.

1.6.2. Employees who have received a designation of intermittent protected leave must comply with the sick leave notification policy in effect in his or her division or department. Failure to do so may result in disciplinary action.

SUBJECT: PROTECTED LEAVE

305.7

1.6.3. Intermittent leave or a reduced schedule is not allowed upon the birth or adoption of a child, except to accommodate the required legal process leading to the adoption of a child or the placement of a foster child.

1.7. Employer Designations: 1.7.1. Marion County will designate leaves of absence as covered under FMLA and

OFLA, even when not requested by the employee, if the employee is eligible and the reason for the absence is a qualifying purpose under one or both of the laws.

1.8. Concurrent Designations: 1.8.1. When the qualifying purpose of the leave is covered under both FMLA and

OFLA, the leave will be designated concurrently toward the time allowed under both laws.

1.8.2. Leaves potentially covered under workers’ compensation will be provisionally designated under both FMLA and OFLA if the absence is for a qualifying purpose under the applicable laws. If a workers’ compensation claim is found to be compensable, the designation will be withdrawn and the leave taken will not count toward the employee’s available leave under FMLA or OFLA.

1.9. General Provisions: 1.9.1. Use of Accrued Leave:

1.9.1.1. While on FMLA/OFLA leave for a personal serious health condition, employees must use sick leave first, then vacation, and then may use other forms of leave prior to leave without pay.

1.9.1.2. While on FMLA/OFLA leave for the serious health condition of a family member or for parental leave (not to be confused with pregnancy disability), employees may choose to use other forms of paid leave prior to using sick leave. All leave accruals must be exhausted prior to leave without pay.

1.9.1.3. Employees on FMLA/OFLA leave, for other than intermittent leave, may elect in writing at the onset of their leave to retain up to 40 hours of sick leave. Employees with leave accruals are not eligible for donated leave.

1.9.1.4. While on domestic violence leave, employees may choose to use other forms of paid leave prior to using sick leave. All leave accruals must be exhausted prior to leave without pay.

1.9.1.5. While on USERRA leave, employees may choose to use sick or vacation accruals prior to leave without pay.

1.9.2. Health Care Benefits During Leave: 1.9.2.1. The employee is required to pay their regular contribution toward

premiums. 1.9.2.2. FMLA: While the employee is on an absence covered by

FMLA or OFLA, Marion County will continue health care coverage at the same rate as an active employee.

1.9.2.3. USERRA: For USERRA leave lasting 31 days or longer, if an employee is in a Stability Period under the Affordable Care Act, health coverage will continue through the end of the Stability Period.

1.10. Medical Release:

SUBJECT: PROTECTED LEAVE

305.8

1.10.1. Prior to or upon returning from family medical leave taken for a personal health condition, the employee is required to provide a medical release to return to work, indicating that they are able to return to work and if there are any restrictions.

1.11. Reinstatement: 1.11.1. Employees returning from protected leave will be reinstated to the same or an

equivalent position with equivalent benefits, pay, and other terms and conditions of employment; unless their former positions have been eliminated for business reasons.

1.12. All qualified protected leave must be reported on an employee’s time sheet regardless if the leave is paid or unpaid.

1.13. FMLA and OFLA are not voluntary; it is mandatory when the employee and condition qualifies for protected leave.

1.14. Exempt employees may not be required to utilize accrued leave for intermittent protected leave, dependent on the type of leave designated; however,and they are required to record all hours taken as protected leave on their time sheet.

1.15. Failure to complete and submit required documentation or submitting insufficient documentation may result in denial of protected leave status.

2. EXCEPTIONS

There are no exceptions to this policy.

3. IMPLEMENTATION

Marion County Human Resources is responsible for implementing this policy. Implementation includes training, advice, and assistance to management staff on the county’s obligations under state and federal laws.

4. PERIODIC REVIEW

The Human Resources Department shall review this policy at least every three years, or more often if needed, and updated as necessary.

ADOPTED 09/02 REVISED 11/09 04/12 01/14 12/17 09/20 03/21

USERRA Guide 1 of 7 Rev. March 2021

Uniformed Services Employment and Reemployment Rights Act (USERRA)

andMilitary Leave

GuideRevised: March 2021

Coresponding Policies: Marion County Protected Leave Policy 305

Applicable Statutes: ORS 399.065, 399.075, ORS 659A.086 to 659A.088, ORS 408.238 to 408.290 and USERRA 38 USC 4301-4335

Purpose: The purpose of this guide is to provide military leave information and guidance to employees of Marion County and to assist with processes related to military leave and reemployment.

Overview: The USERRA is a federal law that establishes rights and benefits for employees, and applicants for employment, who have served in military or other forms of government protected service.

This guide is for informational purposes only and is not all-inclusive. It should not be considered a subsitute for the language of the USERRA as governed by the US DOL. You can find more information at www.dol.gov.

Please call Human Resources at 503-566-3999 for assistance.

(1) Federal Annual Active Duty for Training Leave with Pay under ORS 408.290

(a) Eligible employees called to annual active duty for training or active duty in lieu of training shall be granted military training leave with pay for all regular workdays that fall within a period not to exceed 15 calendar days or 120 hours in any federal training year. Weekend drill obligations are not considered federal active duty for training under this policy.

(b) In order to be eligible for federal annual active duty for training leave with pay under ORS 408.290, an employee must:

(A) Have been employed with Marion County for six months or more immediately preceding the need for military leave.

(B) Be a member of the: National Guard, National Guard Reserve, a reserve component of the Armed Forces of the United States, the U.S. Public Health Service or another category as designated by the President in a time of war or national emergency.

Details:

Note:

County Contact:

(i) teNote: USERRA eligibility rights are not diminished because an employee holds a temporary, part-time, probationary, or seasonal employment position. However their reinstatement rights may be different. Please contact Human Resources.

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(C) Provide advance written or verbal notice of the absence except in instances involving “military necessity” or where giving notice is otherwise impossible or unreasonable.

(c) To receive pay for the annual active duty for training, the employee must provide before, during or after the leave, and at Marion County's request, confirming documentation indicating that the call-up was for annual active duty for training or active duty in lieu of annual training. Marion County HR shall request confirming documentation (military orders, training/drill schedule or other official documents) for the absence.

(d) The federal training year for the purpose of this policy is the federal fiscal year (October 1 through September 30).

(e) If an eligible employee is called to active duty for a period longer than 15 calendar days, the employee will be paid for all regular workdays falling within the first 15 days, only if such time is served for the purpose of discharging an obligation of annual active duty for training as described above.

(f) If the employee has been on military active duty for training leave for 15 days or less, the employee shall return to work at the beginning of the first regularly scheduled work period following completion of service, after allowance for safe travel home and an eight-hour rest period.

(g) Employees shall be allowed to use paid military leave for travel to and from their place of duty and for the time spent on militarily obligated status or military duty regardless of the length of their military status or duty. Paid military leave may not exceed 15 calendar days or 120 hours.

(2) Federal/State Military Leave Without Pay

(a) Military Leaves of Absence

(A) An employee shall be entitled to military leave without pay for military duty while a member of the organized militia of Oregon, or a member of an organized militia of another state, or while they are in active service. Marion County shall grant an employee a leave of absence for military duty that continues through the applicable decompression time. Military duty means training and involuntary or voluntary service performed by an inductee, enlistee or reservist, or any entrant into a temporary component of the Uniformed Services of the United States, and authorized time spent reporting for and returning from such training or service;, or, if a rejection occurs, from the place to which the employee reported. Decompression time means the applicable period of time after military service during which the employee is entitled to request reemployment under USERRA (refer to Section (3) Reemployment Rights).

Leave shall be granted according to ORS 408.240, ORS 399.065, 399.075 and ORS 659A.086. The employee shall provide verbal or written notice of military service to the agency, and the agency shall request confirming documentation (military orders or other official documents). The employee may provide the documents prior to, during or upon completion of the military training leave. Employees are relieved of this obligation in instances involving “military necessity” or in which giving notice is otherwise impossible or unreasonable.

USERRA & Military Leave Guide

(B)

Rev. March 2021

(h) An employee's insurance benefits will not be interrupted during, or due to, annual training leave.

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(C) Periods of leave for service in the uniformed service, other than the 15 calendar-day annual training period, are considered Leave Without Pay unless the employee:

(i)

(ii)

Requests to use personal accruals. Employees are not required to use their accruals. Requests to do so must be made in writing to Human Resources; or

Is an FLSA exempt employee who works any part of a work week while on temporary military leave (defined as up to three months).

(D) If the employee is a member of the Oregon organized militia and is called to active state duty under ORS 399.065 and 399.075, the employee shall be paid according to that statute. Otherwise, military leave and applicable decompression time is without pay.

(i) The employee need not exhaust accrued leave before being granted leave without pay for military leave or subsequent decompression time.

(ii) While the employee is on military leave without pay, they will not accrue vacation, sick or personal business leave, but shall receive full credit for time spent on military leave and subsequent decompression time.

(iii) An FLSA exempt employee who works any part of a work week while on temporary military leave (defined as up to three months), shall receive a full week’s salary for that particular week. However, Marion County will only paythe difference between the amount received from the employee’s military pay and the regular salary due for that particular week. During such week, theemployee shall receive full credit toward accrual of sick and vacation leave hours and will be paid for any holiday occurring during the week.

(b) An employee who entered or re-entered active military leave on or after Jan. 1, 2006, shall receive up to 24 months of employer-paid health plan coverage to begin the date the employee’s active health plan coverage ends.

Upon exhausting the employer-paid health plan coverage, the employee may elect to continue their health plan coverage at their own expense. For more information on this process, contact Employee Benefits at 503-566-3999.

(c)

(d) With supervisory approval, employees may be allowed to voluntarily adjust their shifts to accommodate military duty.

(3) Return To Work / Reemployment Rights

(a) State Active Duty: For employees who are members of the Oregon militia and are called into active service of the state by the governor under ORS 399.065 and 399.075, and for employees who are members of the organized militia of another state and are called into active service of the state by that state’s governor.

(A) To be eligible for reemployment, an employee shall report back to work within seven calendar days from the last day of state active duty.

(B) Upon meeting the requirement for reemployment, the employee shall be restored to the employee’s position or an equivalent position without loss of seniority or other benefits.

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USERRA Guide 4 of 7

(b) Federal Active Duty:- other than Federal Annual Active Duty for Training under ORS 408.290. (A) To be eligible for reemployment an employee shall:

(i) Have performed military duty as defined above in Section (2)(a)(A); and

Have given proper advance notice of the military duty, unless no notice is required; and

(ii)

(iii) Have performed military duty that did not exceed five years of cumulative service. Exceptions to the five-year requirement shall be made if the service is necessary to complete an initial period of obligated service, or the employee cannot return because the period of additional duty was imposed by law or resulted from the employee’s inability to obtain a release relieving the employee from active duty and the inability to obtain the release was through no fault of the employee; and

(iv) Have made application for reemployment either verbally or in writing within 90 days after the employee is relieved from military duty, unless the employee was hospitalized or convalescing due to military duty and the hospitalization/convalescence continued after discharge. An employee then has up to two years to make application for reemployment. This will be extended to accommodate a circumstance beyond an individual’s control that would make applying for reemployment within the two-year period impossible or unreasonable; and

(v) Have separated from the service with an honorable discharge; and

(vi) Return or make application for reemployment within the applicable decompression time following release from military duty as follows: (I) Service of one to 30 days: The employee shall return to work at the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of military duty, after allowance for safe travel from the military duty location and an eight-hour rest period; or if returning at that time is impossible or unreasonable through no fault of the employee, then the employee shall return to work as soon as possible after the end of the eight-hour rest period. For example, an employer cannot require a service member who returns home at 10:00 p.m. to report to work at 12:30 a.m. that night. But the employer can require the employee to report for the 6:00 a.m. shift the next morning.(II) Service of 31 to 180 days: The employee shall make application for reinstatement within 14 days after release from military duty; or if making application for reinstatement within 14 days is impossible or unreasonable through no fault of the employee, then the employee shall make application on the next calendar day on which it is possible to do so; or (III) Service of 181 or more days: The employee shall make application for reinstatement within 90 days after release from military duty.

(c) Upon reemployment, Marion County may request that the employee provide documentationshowing: (A) The employee’s application for reemployment is timely.

(B) The employee has not exceeded the five-year service limitation or provides documentation of an exception under federal or state law; and

(C) The employee’s separation from military duty was not a disqualifying discharge or under other than an honorable condition.

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USERRA Guide 5 of 7

(d) Application for reemployment means the returning service member communicates to the agency that they are a former employee returning from military duty.

(A) Upon meeting the requirements for reemployment, Marion County shall restore the employee to their former position without loss of seniority, status or other benefits, as if the employee had remained continuously employed. If the employee is not qualified to perform the duties of such position by reason of military duty, but is qualified to perform the duties of any other position within the agency equal to or lower than the employee’s current position, the employee shall be restored to such other position. The other position will provide the employee with like seniority, status and pay, or the nearest approximation thereof, consistent with the circumstances in the case.

(B) For an employee reemployed after military leave, their vacation accrual rate, salary eligibility date, and service credits shall be treated as though the employee had remained continuously employed. An employee who has not completed trial service at the time military leave begins may, under certain circumstances, be required to complete trial service upon return from military leave. Contact Human Resources for further information.

(C) For the purpose of calculating an employee’s eligibility for Family and Medical Leave (under the Federal Family and Medical Leave Act and the Oregon Family Leave Act), the months and hours the employee would have worked, but for their military service, should be combined with the months employed and the hours actually worked.

(D) Upon an employee’s reemployment following military leave or decompression time, Marion County shall work with PERS Employer Services to determine eligibility for retroactive retirement benefits. For more information, contact PERS at 888-320-7377.

(4) Protection from Discrimination/Retaliation/Discharge

(a) An employee shall not be discriminated or retaliated against based upon a service obligation, military status or the taking of military leave.

(b) A reemployed employee shall not be discharged without cause within one year of such reemployment.

Rev. March 2021

(5) Accruals, Rate of Pay and Insurance Benefits(a) Accruals normally received by an employee in a paid status will continue to accrue as long as the

employee remains in a paid status.

Requests to use accruals during leave must be made in writing, and using accruals is optional.

Upon reemployment, accruals for vacation, sick etc will accrue at the rate related to an employee's length of service had they not taken leave.

Rate of pay upon return from military leave will generally be the same rate the employee would have been receiving had they not gone on leave. This would include any COLA and/or merit increases they would have received during their military leave.

For the purpose of seniority and seniority-based rights or benefits,the period of military leave is not considered a break in employment. Upon reemployment, employees are entitled to the same seniority rights they would have attained, had they not taken military leave.

(b)

(c)

(d)

(e)

Marion County Group Health Insurance enrollments will be maintained in accordance with applicable federal and state regulations such as the Affordable Care Act. If an employee becomes ineligible for coverage under the group health plan, continuation of benefits under COBRA will be extended and is on a self-pay basis. An employee who returns to employment in a timely manner in accordance with USERRA and this Marion County guide will be reinstated to the group health plan as soon as possible. For more information please contact Employee Benefits at 503-566-3999.

(f)

USERRA Guide 6 of 7 Rev. March 2021

End of Marion County USERRA Guide. See next page for USERRA Notice from the US Department of Labor.

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✩✩ The U.S. Department of Labor, Veterans Employment and Training Service (VETS) is authorized to investigate and resolve complaints of USERRA violations.

✩✩ For assistance in filing a complaint, or for any other information on USERRA, contact VETS at 1-866-4-USA-DOL or visit its website athttp://www.dol.gov/vets. An interactive online USERRA Advisor canbe viewed at http://www.dol.gov/elaws/userra.htm.

✩✩ If you file a complaint with VETS and VETS is unable to resolve it, you may request that your case be referred to the Department of Justice or the Office of Special Counsel, as applicable, for representation.

✩✩ You may also bypass the VETS process and bring a civil action against an employer for violations of USERRA.

YOUR RIGHTS UNDER USERRA THE UNIFORMED SERVICES EMPLOYMENT

AND REEMPLOYMENT RIGHTS ACTUSERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake

military service or certain types of service in the National Disaster Medical System. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services.

REEMPLOYMENT RIGHTSYou have the right to be reemployed in your civilian job if you leave that job to perform service in the uniformed service and:

✩✩ you ensure that your employer receives advance written or verbal notice of your service;

✩✩ you have five years or less of cumulative service in the uniformed services while with that particular employer;

✩✩ you return to work or apply for reemployment in a timely manner after conclusion of service; and

✩✩ you have not been separated from service with a disqualifying discharge or under other than honorable conditions.

If you are eligible to be reemployed, you must be restored to the job and benefits you would have attained if you had not been absent due to military service or, in some cases, a comparable job.

RIGHT TO BE FREE FROM DISCRIMINATION AND RETALIATIONIf you:

✩✩ are a past or present member of the uniformed service; ✩✩ have applied for membership in the uniformed service; or✩✩ are obligated to serve in the uniformed service;

then an employer may not deny you:

✩✩ initial employment;✩✩ reemployment;✩✩ retention in employment;✩✩ promotion; or✩✩ any benefit of employment

because of this status.

In addition, an employer may not retaliate against anyone assisting in the enforcement of USERRA rights, including testifying or making a statement in connection with a proceeding under USERRA, even if that person has no service connection.

HEALTH INSURANCE PROTECTION✩✩ If you leave your job to perform military service, you have the right

to elect to continue your existing employer-based health plan coverage for you and your dependents for up to 24 months while in the military.

✩✩ Even if you don’t elect to continue coverage during your military service, you have the right to be reinstated in your employer’s health plan when you are reemployed, generally without any waiting periods or exclusions (e.g., pre-existing condition exclusions) except for service-connected illnesses or injuries.

ENFORCEMENT

The rights listed here may vary depending on the circumstances. The text of this notice was prepared by VETS, and may be viewed on the internet at this address: http://www.dol.gov/vets/programs/userra/poster.htm. Federal law requires employers to notify employees of their rights under USERRA, and employers may meet this requirement by displaying the text of this notice where they customarily place notices for employees.

U.S. Department of Labor1-866-487-2365

U.S. Department of Justice Office of Special Counsel 1-800-336-4590Publication Date — April 2017

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