Vermont Military Leave and Reemployment Rights

Title 21, sections 491 through 493 are stronger than the federal baseline in three specific ways, and one widely repeated description of them is nine years out of date. Start with what the statute no longer says. Until July 1, 2016 section 491 entitled a member to leaves of absence "for a total of 15 days in any calendar year" and separately required reinstatement with the same status, pay, and seniority. 2015 Act 121 (Adj. Sess.), section 1, struck both. The section as it now stands entitles a member, upon request, to a leave of absence to engage in military drill, training, or other temporary duty pursuant to state or federal military orders, with no day count at all. The federal Army benefits library still reports the 15-day figure as current Vermont law. It is not. The first way Vermont goes past the federal floor is the equal-treatment rule in section 491(a)(1). A member of the Reserve Components, the Ready Reserve, the Vermont National Guard, or the National Guard of another state receives the same benefits, privileges, and protections in employment regardless of the activation authority or location of service. Federal USERRA is a federal-service statute. Vermont says the source of the orders does not change the protection. The second is section 491(a)(2)(B), which subjects a member ordered to State active duty to the requirements of, and entitles them to the rights, privileges, benefits, and protections of, USERRA itself. State active duty on a Governor's order is outside USERRA as a matter of federal law. Vermont imports the whole federal scheme and applies it anyway, and section 492(b) separately entitles a member absent under section 491 to the reemployment rights and benefits in 38 U.S.C. 4312 to 4318. The third is health insurance, and it is the provision nobody lists. Under section 492(c)(1), a Guard member with civilian employer-sponsored coverage who is ordered to State active duty for up to 30 days may, at the member's option, continue that coverage under the same terms and conditions as were in effect for the month before the call-up, including the same levels of employer and employee contributions. Under section 492(c)(2), past 30 days the member may continue the coverage, and where the employer chooses not to keep making its regular contributions, the State of Vermont pays the employer's share of the premium and cost-sharing. The Office of the Adjutant General administers it. Federal USERRA lets a service member continue coverage at up to 102 percent of the full premium, which is the opposite arrangement: there the member pays the employer's share, here the State does. Section 492(a) adds that an absence for military training or State active duty does not affect the employee's right to normal vacation, sick leave, bonus, advancement, and other advantages of employment normally to be anticipated in the position. The remedy is unusual. Section 493(a) lets the employee bring an action in the Civil Division of the Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, and reasonable attorney's fees. USERRA does not provide punitive damages. Section 493(b) also lets the Attorney General or a State's Attorney sue, and conduct civil investigations under the consumer protection procedures in 9 V.S.A. 2458 to 2461 as though the violation were an unfair act in commerce. Whether the leave is paid is left to the employer under section 491(a)(2)(C). Section 491(b) and (c) bar discrimination on the basis of Guard membership, application for membership, performance of or application for service, or obligation to serve, and bar retaliation against a person who enforces the subchapter, testifies, assists an investigation, or exercises a right under it. No disability rating is involved anywhere in this subchapter.