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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 who is 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 additional 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. However, 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 certain 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 he would have held if he had been continuously employed throughout the leave, as long as he is qualified for the job. He is also entitled to any increased pay, benefits or additional job responsibilities that correspond to any such promotion. Most states have additional 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 additional conditions for reinstatement that offer additional protection to the returning employees.

Can the Employer Fire the Returning Military Person Right after Reinstatement?

No. Under USERRA, returning military persons cannot be fired from their job without cause for a certain period of time after their return, even if they are working in an at-will employment state. The exact period of 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 employment lawyer can help employees determine whether the USERRA or other state military leave laws apply to them. If the employee returns and feels that he is being treated differently because of the leave, or if the employee has been wrongfully terminated because he attempted to exercise his rights under the USERRA, an employment law attorney can help ensure that the employee's rights are protected.

Photo of page author Kristen Johnson

, LegalMatch Legal Writer

Last Modified: 09-30-2016 02:51 PM PDT

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