Military Leave Law
The Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) provides job protection to workers that serve in the military. The USERRA prohibits employers from engaging in discriminating acts against employees that serve in the military and provides eligible service members with job reinstatement rights upon completion of military service. The law applies to all employers, but does not require the employer to pay the employee during military leave.
Military Leave Eligibility
The right to reinstatement in a civilian job applies to individuals that voluntarily or involuntarily serve in the military. This includes the following type of uniformed service:
- Active duty, including Reserve and National Guard duty
- Active duty for training
- Initial active duty for training
- Inactive duty for training
- Full-time National Guard duty
When a service member returns from military leave, the guarantee of reemployment in a civilian job applies if:
- The employee gave the employer advanced written or verbal notice of military service or training
- The employee's cumulative military leave does not exceed 5 years
- The employee was discharged under honorable conditions
- The employee applied for reemployment within the specified time
The USERRA provides exceptions to the five-year limitation when certain situations apply. For instance, this limitation is inapplicable when the service member is unable to obtain a release from service, must participate in necessary training, or the service occurs during a time of war or a national emergency.
Military Leave Benefits
The law protects a service member's job status, pay, and benefits. Upon reemployment, the employer must:
- Count the employee's military leave toward seniority status: The service member is entitled to increased pay, promotions, benefits, and pension vesting as if continuously employed.
- Provide training: If the employee is not qualified for the reinstatement position, the employer must make "reasonable efforts" to qualify the employee.
- Not discharge the employee without cause: The law prohibits an employer from discharging an employee for 180 days if service was for 31 to 180 days or for one year if service exceeded 180 days.
- Offer immediate reinstatement of health insurance coverage: The employer cannot impose a waiting period on health insurance coverage for the employee and the previously covered dependents of the employee.
Under certain circumstances, the law does not require employers to reinstate service members if:
- Changes in the workplace make reinstatement unreasonable or impossible;
- Reemployment would create an undue hardship on the employer; or
- The employment of the service member prior to service was brief and there was no reasonable expectation that employment would continue for a long time.
State Military Leave Protection
Many states have military leave laws that protect workers that serve in a state militia, the National Guard, or as a reservist. Laws vary by state, but most prohibit discrimination against employees that serve in the military and entitle the worker to unpaid leave. Laws typically also provide reinstatement rights and protect the worker's benefits.