USERRA

[Benefits50]

USERRA Intermittent leave

A reservist has been repeatedly called up for 3- and 4-day/week assignments.  He has ceased to satisfy the "regularly works 30 hours/week" requirement for maintaining health plan coverage, i.e., has become a part-time employee.  Must we treat each weekly notice as a new period of service and restart the 30-day clock for retaining the eligible employee premium sharing rate?  Can we unilaterally classify this pattern of military service as a continuous period of part-time military service and then convert from the active employee rate to the 102% COBRA rate after the employee has lost the active employee coverage and received 30 days of coverage at the active employee rate? 

[hr for me]

From SHRM: https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/healthcarebenefitsmilitaryleave.aspx: If the employee’s military leave is for 30 days or less, then an employer does need to continue health benefits as if the employee is actively working. If the employee’s military leave is for a period of 31 days or more, the employer is able to terminate benefits and offer COBRA-like benefits. The benefits cannot cost more than 102% of total premium cost per month, similar to other COBRA events, but USERRA requires that coverage be provided for up to 24 months.

USERRA final regulations begin discussion of health benefits at Section 1002.163.

USERRA is one of those laws that seems to always err on the side of the reservist/employee and I don't see how you can argue these short leaves are combined to be more than 30 days.  I'd have to be very very comfortable with legal counsel agreeing to move them to COBRA.  But I do not see where that is an option based on this schedule.