Military leave is the granting of time off work, with or without pay, for military service. Employers are required to provide military leave to employees. Federal and state laws set the rules for pay, notice and reinstatement for time-off for military service. Depending on the nature of the leave, some states may only require leave for active duty while others allow for training as well.

Which Employees are Eligible for Military Leave?

Eligible employees for military leave include any employee who is called to military service, training, reserve duty, etc. and who are not considered temporary employees under federal law. This includes employees that are on probationary status and employees who have been with their employer for only a couple of days.

Do I Get Paid If I go on Military Leave?

Only public employers are required to pay their employees if they go military leave. Private employers 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 held before taking military leave upon successful completion of active military duty. 

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.

Can I Get Fired If I go on Military Leave?

State laws usually forbid discriminating against those in the military. Employers cannot fire or terminate an employee simply because they go on military leave. An employer, after the employee returns, must re-employ their for the same position. There also cannot be a reduction in pay or loss of benefits.  

What are the Requirements to Go on Military Leave?

To be eligible for military leave, there are some requirements and restrictions under some state laws including: 

  • The returning employee must prove that he has completed his service;
  • Sometimes an employer does not have to re-employ the returning serviceman if his reinstatement is unreasonable due to changes in the workforce;
  • If the employee was dishonorably discharged, he may not be re-employed;
  • The employee may be required to request reinstatement in a specified time period; and
  • The employer may have to offer a suitable substitute position to a returning employee who can no longer perform his previous job.

Are Federal Employees Eligible for Military Leave?

Federal employees are entitled to military leave as well. Full-time civilian employees are entitled to military leave if their appointment is not limited to one year. As a federal employee, you are entitled to: 

  • 15 days per year for active duty, active duty training, and inactive duty training;
  • 22 days per year for emergency duty (ordered by the President, Secretary of Defense, or State Governor);
  • Unlimited leave for members of the National Guard of the District of Columbia for certain duties; and
  • 44 workdays of military leave for Reserve and National Guard Technicians for duties overseas.

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; and
  • The employee reports back or applies for reinstatement within specified time limits. However time limits vary depending on how long the employee was on leave.

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.

Do I Need a Lawyer for My Military Leave Issues?

A local 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