The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law defending the employment rights of individuals in military service and those who apply for military service. USERRA also forbids employers from discriminating against past and present military members.
Granting an employee time off work, with or without pay, for military service is military leave. The law requires employers to provide military leave to their employees. Both state and federal laws address the issues of pay, notice, and reinstatement after time-off for military service. Some states require that employers allow leave only for active duty service, while others authorize leave for military training.
The USERRA employment protections authorize employees to take up to five total years of military leave. After five years, the military leave policy no longer applies to the service member’s relationship with that employee. Nevertheless, every time an employee gets a job with a new employer, the five-year limit begins running again.
USERRA military leave can last beyond five years if the employee comes within one of eight exceptions. The eight exceptions to the five-year limit of leave are as follows:
- Military members whose initial service is required beyond five years;
- Service by a military member who cannot get a release from military duty through no fault of their own;
- Training required for reservists and National Guard members;
- The member is subject to an order for involuntary service or has been retained on active duty during a national emergency or national security-related situation;
- Members called to serve or to remain on active duty because of war or national emergency;
- Active duty by volunteers who support “operational missions” for which specific reservists have been ordered into active duty without their consent;
- Service by members ordered to active duty in support of a “critical mission or requirement” of any of the services as determined by the secretary of the member’s branch;
- Federal service of National Guard members whom the president calls into action to suppress an insurrection, repel an invasion, or execute the laws of the United States.
Before an employee takes their military leave, they must give their employer advance notice. Notice can be written or oral form. The employee does not need to give their employer a copy of their military orders. There is no specific amount of time before the employee takes their leave when they must give notice.
An employee does not need to give the employer advance notice if they come within one of the following exceptions:
- The employee is prevented from giving notice by military necessity; or
- Notifying the employer is otherwise impossible or unreasonable.
Which Employees Are Eligible for Military Leave?
The employees eligible for military leave include any employee who is called up for military service, training, reserve duty, and the like. Temporary employees would not qualify for military leave under federal law.
Also, employees who are on probationary status and employees who have been in their position for only a few days would not be eligible.
Do I Get Paid If I Take Military Leave?
Only public employers must pay their employees if they take military leave. Employers in the private sector can provide their employees with military leave but do not have to pay the employee for any or all of the leave.
Although the leave may be without pay for private employers, the employee must be reinstated to the position they held before taking military leave when their active military duty has ended.
Under USERRA, the employee is entitled to the same position they would have held if they had been continuously employed throughout leave, as long as they are qualified. The employee is also entitled to any increased pay, benefits, or further job responsibilities they would otherwise have assumed.
Can I Be Fired If I Take Military Leave?
State laws usually forbid discrimination against employees who are in the military. Employers cannot fire or terminate employees merely because they go on military leave.
After the employee returns, an employer must return them to the same position they had before they took military leave. Employers cannot diminish employees’ pay or reduce or eliminate their benefits.
What Are the Requirements for Taking Military Leave?
State laws impose some requirements and restrictions on eligibility for military leave, including:
- An employee returning from service must confirm that their service has been completed;
- An employer does not have to re-employ the returning service member if their reinstatement is unreasonable because of changes in the workforce;
- If the employee was dishonorably discharged, they are not entitled to re-employment;
- The employee may be required to request reinstatement within a specified time; and
- The employer may have to offer an appropriate substitute position to a returning employee who can no longer perform their previously held job.
Are Employers Required to Allow Their Employees to Take Military Leave?
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires employers to grant a leave of absence for up to five years to any person absent from a job because of service in the uniformed services.
Service in the uniformed services includes active duty, training, examinations, and full-time National Guard duty. Some states have laws that provide further leave protections for military personnel.
Are Employers Required to Pay Employees While They Are on Military Leave?
Private employers do not have to pay employees who take military leave. Nevertheless, some states do provide paid leave for public employees.
What Do I Have to Do to Get My Job Back After Military Leave?
USERRA requires employers to re-employ an employee who has taken time off to serve in the armed forces as long as the employee meets the following conditions:
- Before taking leave, the employee gave the employer notice that the leave was for military service.
- The employee spent no more than five years on leave for military service. There are specific exceptions to this rule.
- The employee was released from military service under honorable conditions.
- The employee reports back or applies for reinstatement within specified time limits. The time limits vary depending on how long the employee was on leave.
Under USERRA, the employee is entitled to the same position they would have held if they had been continuously employed throughout the leave, as long as they are qualified. They are also entitled to any increased pay, benefits, or further job responsibilities that correspond to such promotion. Most states have other laws requiring an employer to reinstate a returning military person without any loss of benefits, loss of status, or reduction in pay. These states may have other conditions for reinstatement that offer extra protection to the returning employees.
Can the Employer Fire the Returning Military Person Right After Reinstatement?
No. Under USERRA, returning military persons cannot be terminated from their job without cause for a certain time after their return, even if they work in an at-will employment state. The exact time that the employee’s job will be protected will vary depending on the length of military service.
Do I Need a Lawyer for My Military Leave Problem?
An experienced wrongful termination lawyer can help employees determine whether the USERRA or other state military leave laws apply. If the employee returns and feels that they are being treated differently because of the leave, or if the employee has been wrongfully terminated because they attempted to exercise their rights under the USERRA, an employment law attorney can help ensure that the employee’s rights are protected.