Understanding Military Leave

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that protects the employment rights of people in military service and those who apply for military service. USERRA also prohibits employers from discriminating against past and current members of the military.

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 allow leave for military training as well.

The USERRA employment protections allow 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. However, 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 obtain 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 ordered to serve or to remain on active duty because of a war or national emergency;
• Active duty by volunteers who support “operational missions” for which certain 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 who are eligible for military leave include any employee who is called up for military service, training, reserve duty, and the like. Temporary employees would not be eligible for military leave under federal law. Also, employees who are on probationary status and employees who have been in their position for only a matter of a few days also would not be eligible.

Do I Get Paid If I Take Military Leave?

Only public employers are required to 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 the period of leave, as long as they are qualified for the job. The employee is also entitled to any increased pay, benefits or additional job responsibilities they would otherwise have assumed.

Can I Be Fired If I Take Military Leave?

Discrimination against employees who are in the military is usually forbidden by state laws. military. Employers cannot fire or terminate an employee simply because they go on military leave.

An employer, after the employee returns, must return them to the same position they had before they took military leave. Employers also cannot reduce the employee’s 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 for military leave, including:

• An employee returning from service must prove 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 period; and
• The employer may have to offer an appropriate substitute position to a returning employee who can no longer perform the job they held previously.

Are Federal Employees Eligible for Military Leave?

Federal employees are entitled to military leave just as employees in the private workforce, if their appointment is not limited to one year. A federal employee is entitled to the following:

• 15 days in a one year period for active duty, active duty training, and inactive duty training;
• 22 days in a one year period for emergency duty ordered by the President, Secretary of Defense, or State Governor;
• Unlimited leave for employees who are members of the National Guard of the District of
• Columbia for certain, specified duties; and
• 44 workdays in a one year period for Reserve and National Guard Technicians for duties overseas.

How Do I Get My Job Back after Military Leave?

Under USERRA employers must re-employ an employee who took time off to serve in the armed forces, as long as the employee meets the following conditions:

• Before taking their leave, the employee notified the employer of the fact that the leave was for military service;
• The employee spent a maximum of five years on leave for military service. There are some limited exceptions to this rule;
• The employee was honorably discharged from the military; and
• The employee applies to their former employer for reinstatement within specified time limits, which vary depending on how long the employee was on leave.

Most states require 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 employees who are returning.

Do I Need a Lawyer for Help with My Military Leave Issues?

A local employment law attorney can help you figure out whether the USERRA or other state military leave laws apply to your case and entitle you to military leave.

Or, you may be an employer with an employee who has returned from leave and feels that they are being treated differently because they were on leave. Or, an employee may have been wrongfully terminated because of an issue with USERRA.

An employment law attorney can give you guidance on how to comply with USERRA and how to handle any legal issues you might have because of a past failure to comply. Your attorney can give you advice, negotiate solutions or represent you in court, if necessary.