USERRA and COBRA: How They Interact and How They’re Different

USERRA is The Uniformed Services Employment and Reemployment Rights Act that has some differences from that of COBRA benefits. 

What is USERRA?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) was signed into law by U.S. President Bill Clinton in 1994 with the intent to protect the civilian employment of active and reserve military personnel in the United States called to active duty. The provisions of USERRA protections are designed to provide pension, job, and health care benefit protection for certain individuals who are called upon for active military service. As is the case with many employment laws, USERRA was enacted with the purpose of setting a baseline, or minimum standard for employers. Of course, employers are free to provide veterans with greater protections if feel inclined to do so.  

​Who is protected under USERRA?
In order for an individual to be eligible for protection under USERRA, he or she must be an employee departing for military service in the uniformed services. According to the law, uniformed services are defined as the “…Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency.” Eligibility for USERRA protection is retained until the individual has served a cumulative total of five years in the uniformed services. Employees who are dishonorably discharged from the uniformed services or who receive a bad conduct discharge or a discharge under less than honorable conditions are not eligible for protection under USERRA. 

What are some of the key differences between USERRA and COBRA?
Applicable Employers and Plans
Unlike COBRA - where only employers with a group health plan and 20 or more employees on 50% of the previous calendar year’s business days are subject to the law – USERRA benefits apply to all employers regardless of size. 
Employee Notice of Service
Under USERRA, an employee who has been “called up” or activated for uniformed services must provide oral or written advance notice to his or her employer if possible. Notice may be provided by the employee or an appropriate officer of the military branch to which the employee is reporting. No time frame is required, although the U.S. Department of Defense recommends 30 days. COBRA has no such advance notice requirement.
Duration of Coverage
One key difference between USERRA and COBRA is under COBRA, employees are typically entitled to up to 18 months of coverage, whereas USERRA requires coverage for up to 24 months, or the duration of their service, whichever is lesser. Thus, the time of coverage under USERRA may be greater than COBRA, if the service is for 24 months or longer. Or it may be lesser than COBRA when the length of service is less than 18 months.
Election Rights
COBRA provides each qualified beneficiary the independent right to elect coverage. Under USERRA, the right to continue health plan coverage rests solely with the employee.

​How do USERRA and COBRA interact?
When an employer is subject to both USERRA and COBRA, the employer will have dual responsibilities. In other words, the employer must comply with the requirements of both laws. However, since USERRA does not have specific time frames for elections, payment and cancellation of coverage like COBRA does. Employers may adopt reasonable procedures for USERRA that mirror those for COBRA. Typically, those procedures will often clarify that the election is for both USERRA and COBRA.
If an employee is absent due to military service and would otherwise lose eligibility for health care coverage due to a reduction in hours, the employee has experienced a COBRA Qualifying Event and must be offered the right to continue his or her coverage under USERRA and COBRA and receive the greater benefit of each (e.g. due to termination of employment 24 months of USERRA continuation rather than 18 months under COBRA). 
Under USERRA, if military leave for the employee is 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 the total premium cost per month, similar to other COBRA events.

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​Conclusion
For all intents and purposes, continuation coverage under USERRA works simultaneously with COBRA, and coverage continuation under USERRA is essentially another form of a COBRA qualifying event. That being said, although very similar, USERRA and COBRA are not exactly the same, as evidenced by some of the differences we’ve already highlighted. If an employer or employee has any questions about their rights and responsibilities under USERRA and/or COBRA we would encourage anyone to contact us here at CobraHelp and we would be happy to assist.   

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​The information in this website is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from CobraHelp. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.