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Military Leave Law

The Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) provides job protection to workers who serve in the military, typically those in the National Guard or military reserves. More specifically, USERRA prohibits employers from engaging in discriminating acts against employees who 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.

See Military Service Benefits: SCRA and USERRA for an employee-targeted overview of military leave laws and Civilian Employment After the Military: What You Should Know for some helpful advice.

Military Leave Eligibility

The right to reinstatement in a civilian job applies to individuals who voluntarily or involuntarily serve in the military, or who have served in the military. All employers are required to comply with the law, regardless of size. USERRA benefits apply to 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

Reemployment Eligibility

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. Also, employers are required to make every effort to provide reasonable accommodations for military service members with disabilities. 

There are limited instances where an employer is not required to rehire a military service member returning from active duty. These include the following:

  • Changes in the workplace make it impossible (or nearly so) to reinstate the employee
  • Reinstatement would create an undue hardship for the employer (in the context of a disability, this could be the unavailability of a reasonable accommodation)
  • Employment of servicemember was so brief that there should be no reasonable expectation to return

Military Leave Benefits

The law protects a service member's job status, pay, and benefits as if he or she was not away at active duty. For example, the service member who leaves for six months of active duty should get the same pay raise as his or her non-military peers (assuming performance levels and seniority are equal). 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.

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. For example, Washington state law prohibits employers from denying employment, reemployment (after taking a leave for active duty service) or employment benefits to servicemembers because of their military association and obligations.

Need Legal Help?

Drafting leave policies that are both accommodating to your employees and acceptable for your business sometimes requires help from an attorney. An employment law attorney can help ensure that your policies are coherent and in compliance with all applicable laws.

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