Rights And Benefits Provided To Others In Similar Status
USERRA does not expressly require employers to pay or provide benefits for employees. The statute and regulations do, however, require employers to provide non-seniority rights and benefits to similarly situated employees under “an employment contract, agreement, policy, practice or plan in effect at the employee’s workplace.” If non-seniority benefits vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable leave. In response to comments, the Department of Labor provided additional guidance on “comparable leaves” and noted that the duration of the leave may be the most significant factor to compare. For example, an employer who provides certain non-seniority benefits to individuals on a two-day funeral leave will probably not be required to provide those benefits to an individual on an extended military leave. Also in response to comments, the Department of Labor noted that vacation accrual is generally a non-seniority benefit unless provided to similarly situated employees on comparable leaves of absence.