The Pennsylvania statute is brief and straightforward when compared to the federal Act. It prohibits all employers, including state government, agencies and political subdivisions, from refusing to hire or employ any person not on extended active duty because of his membership in the National Guard or any reserve component of the armed forces of the United States or because the person is ordered to active State duty or special State duty by the Governor during an emergency. Employers are prohibited from discharging from employment any such person or to discriminate against him/her with respect to "compensation, hire, tenure, terms, conditions or privileges of employment." 51 Pa.C.S. §7309(a).

The Pennsylvania statute requires that employees called into service be restored by their employer "to such position or to a position of like seniority, status and pay which such member held prior to such emergency or military duty." 51 Pa.C.S. §7309(b). If the employee is not able to perform those duties because of injuries received while in service but can perform the duties of other positions in the employ of the employer or its successor in interest, the employee shall be restored to such other position as will provide him/her with "like seniority, status and pay, or the nearest approximation thereof consistent with the circumstances of the case," unless the employer’s "circumstances have so changed as to make it impossible or unreasonable to do so." Id.

In furtherance of its objective to protect service members from discrimination, the Pennsylvania statute requires the extension of benefits during military duty. Section 7309(c)requires employers to "continue health insurance and other benefits in effect for at least the first 30 days of military duty," after which the employer shall give the employee "the voluntary option of continuing such health insurance and other benefits in effect at his own expense."

Not surprisingly, the federal Act is much more detailed, but, in essence, requires substantially the same of the employer and provides the employee with substantially the same protections. For example, §4311 states that a member of the uniformed services "shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment" because of the employee’s membership in the uniformed services or performance of his/her duties in connection therewith. "Benefit," "benefit of employment" and "rights and benefits" are defined to mean "any advantage, profit, privilege, gain, status, account or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment." §4303(2).

However, the federal Act also limits a employer’s duty to restore the service member employee to his job and benefits to instances where the employee has notified the employer of his military service, the cumulative length of the absence and of all previous absences from employment with that employer by reason of service in the uniformed services does not exceed five years and the employee submits an application for reemployment in accordance with the specific procedures and requirements of the Act. 43 U.S.C. §4312(a). The position into which the person is to be reemployed is also controlled by statute and depends, to some extent, on the length of the employee’s service in the uniformed services. §4313.

As with the Pennsylvania statute, the federal Act does not require the employer to reemploy the service member if the employer’s circumstances have so changed as to make reemployment impossible or unreasonable, if such reemployment would impose undue hardship on the employer or if there was no reasonable expectation that the previous employment would have continued indefinitely or for a significant period. §4312(d)(1). The employer has the burden of proving impossibility, unreasonableness, undue hardship and the fact that the employment was not expected to continue indefinitely or for a significant period of time. Id.

Health insurance and pension benefits are also addressed by the federal Act. Health plans must allow the service member employee to elect to continue coverage under the employer’s plan after his/her call up to service for a maximum period that is the lesser of 18 months or the day after the date on which the person fails to apply for return to employment. A person electing to continue health care coverage can be required to pay not more than 102% of the full premium under the plan. An exclusion or waiting period cannot be imposed in connection with reinstatement of coverage upon reemployment. §4317.

As for pensions, a reemployed service member shall be treated as not having incurred a break in service by reason of periods of service in the uniformed services. Each period served is deemed to constitute service with the employer for purposes of determining the nonforfeitability of accrued benefits and determining the accrual of benefits under the pension plan. §4318. The employer is responsible for continuing to fund its contributions to the plan, but the employee is responsible for his/her own contributions. The employee is responsible for making payment into the plan those payments that were not contributed by him/her while in service, beginning with the date of reemployment and over a period whose duration is three times the period the person was in service, but not exceeding five years. Id.

Lastly, it should be noted that the federal Act merely prescribes the minimum rights of members of the uniformed services called away from work. The Act supersedes all State laws, contracts, agreements, plans and practices that reduce or eliminate the benefits provided by the federal Act or that impose additional prerequisites and procedures for receiving benefits. §4302. However, employers and States are permitted to be more beneficial and offer greater protections and benefits than the federal Act requires.

Should you have any questions regarding this matter or any insurance issues, please call or e-mail John P. Davis, III at (412) 261-6400 or jpd@jpcg.com.