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Military Leave Rights

Following are typical questions regarding Military Leave Rights established by the Uniformed Services Employment and Reemployment Rights Act (USERRA).

What Employers are covered?

What employees are entitled to leave?

Length of Military Leave

  • The cumulative length of an employee’s military leave of absence from employment may not exceed five (5) years. The employee may accumulate five (5) years of leave over the course of his or her employment with an employer.
  • Employers may not count certain leave towards the five year limitation. Leave employers may not count towards the limitation includes:
     
    1. Service required beyond five years to complete an initial period of obligated service.
    2. Service from which an individual, through no fault of his or her own, is unable to obtain a release with the five year limit.
    3. Individuals involuntary retained on Active Duty.
    4. Required training for Reservists or National Guard Members (includes two-week annual training sessions and monthly weekend drills mandated by statute for Reservists and Guard Members).
    5. Service under an involuntary order to, or retention, on, active duty during domestic-emergency or national security-related situations.
    6. Service under an order to, or retention on, active duty (other than for training) during a war or national emergency declared by the President or Congress.
    7. Active duty (other than for training) by volunteers supporting “operational missions” for which selective reservists have been ordered to active duty without their consent. “Operational Missions” involve circumstances other than war or a national emergency for which, under Presidential authorization, members of Selected Reserves may be involuntarily ordered to active duty for up to 270 days (e.g. Operations Desert Shield and Desert Storm).
  • An employer CANNOT refuse to grant leave to an employee because the employer believes that the length, timing, or frequency of an employee’s military obligations are unreasonable. Nothing in USERRA, however, prevents an employer and employee from working cooperatively to accommodate each others needs.

Notice Requirements FOR EMPLOYEE’S

  • Employees must provide advanced notice of a military service obligation orally or in writing. Employers may request that employees submit copies of their military orders, training notices, or induction information.
  • Employees need not provide advanced notice if “military necessity” precludes doing so or if it is otherwise impossible or unreasonable.

    • “Military Necessity” is defined by regulations issued by the Secretary of Defense; these regulations ARE NOT subject to judicial review. Whether advanced notice is otherwise impossible or unreasonable IS subject to judicial review.

Timing of Reinstatement

  • The timing of en employee’s reinstatement depends on the duration of his/her military service.

    • Military service that is less than 31 days, or for purpose of taking a fitness for service exam: Employee must report for reemployment at the beginning of the first regularly scheduled workday that falls eight (8) hours after he/she returns from service. If it is impossible or unreasonable to comply with this rule due to no fault of the employee, the employee must report back to work “as soon as possible.”

    • Military service between 31 days to 180 days: Employee must submit an application to return to work no later than 14 days following his/her completion of service. If submitting an application within this period is impossible or unreasonable due to no fault of the employee, then the application must be submitted “as soon as possible.”

    • Military service greater than 180 days: Employee must submit as application within 90 days after the completion of the military service.
    *Note: If an employee is hospitalized or convalescing from a service related injury, these application times may be extended for up to 2 years. This 2 year period may be further extended by the “minimum time,” necessary to accommodate a circumstance beyond the person’s control which makes reporting within the 2 year period impossible or unreasonable.
  • An employee who fails to report back to work or reapply for employment within the applicable time period is subject to the employer’s unexcused absence policy.

Employee’s Reinstatement Obligations

  • Complete military service under honorable conditions, which does NOT include: Dishonorable/bad conduct discharge; Dismissal of commissioned officer in situations involving court martial or by order of the President in time of war; Dropping a commissioned officer from the roles due to absence without authority for more than 3 months or imprisonment by civilian court; and separation from service under other than honorable conditions.
  • If requested by the employer, an employee who has been on leave for a period of 31 days or more must provide documentation establishing the timeliness of the employee’s reinstatement request, as well as the length and character of military service. If documentation if initially unavailable, the employer must re-employ the employee until documentation becomes available. If, after reemployment, the employer receives documentation establishing that one or more of the reinstatement requirements has NOT been met, the employer may discharge the employee, but only as of the date the documents are provided. The employer may not retroactively discharge the employee.
  • If an employee is on military leave for 90 days or more, the employer may delay making any retroactive pension contributions until the employee submits satisfactory documentation. (Retroactive contributions, however, must be made immediately to persons from a military leave of 90 days or less.

Employer Reinstatement Obligations

  • If a former employee meets the requirements for reinstatement, the employer has an affirmative obligation to rehire him/her, except under limited circumstances.
  • An individual on military leave in entitled to reinstatement to the position he or she would have attained but for the leave.
  • If the employee has fewer than 91 days of military service, the employer must “promptly reemploy,” the person in the position he or she would have attained. The employee must be qualified for the job or have the ability to become qualified after reasonable efforts by the employer to qualify the person. If the employee is not qualified for the position he or she would have obtained, the employer must reemploy that person in the position he held prior to military service. If the employee is not qualified for the position he would have attained, or the position previously held, the employer must reemploy the person in the nearest approximation for which he is qualified, with full seniority.
  • An employee with 91 or more days of military service must be reemployed in that position he would have attained as if he were continuously employed. The employee must be qualified for the position or able to become qualified after reasonable efforts by the employer to qualify the person. If the employee cannot become qualified for the position he would have attained, the employer must reemploy the person in his prior position, or in a position of “equivalent,” seniority status, and pay, so long as the person is qualified or can become qualified after the employer’s reasonable efforts. If an employee cannot qualify for the position he would have attained, his former position or a position of equivalent seniority, status and pay, the employee must be placed in a position of “like” seniority, status and pay for which he is qualified, with full seniority.
  • If an employee returns to work with a service-related disability , the employer must make reasonable efforts to accommodate the disability in the performance of the position the employee would have attained absent such service. If the employee is not qualified for that position despite any reasonable accommodations, the employee must be reemployed in a position of “equivalent” seniority, status and pay for which he or she could become qualified or is qualified. If the employee cannot meet the qualifications of either of these two situations, the employer must reemploy him in the position that is the “nearest approximation,” in terms of seniority status and pay. *This disability requirement applies to all employers, regardless of size.
  • Employer has a duty to provide refresher training and any other training needs to update the returning employee’s skills if the employee is no longer qualified due to technological advances. (Employers are excused from this training requirement if they can prove “undue hardship,” which has the same meaning as under the Americans With Disabilities Act.)