When hiring, you may bring in a new employee who is a member of the military. Some employees may be currently enlisted or in the reserves when you hire them. Or, employees may enlist while working for your company. And if an employee needs to take time off for their military service, you must follow the USERRA military leave policy.

What is USERRA, and what is the policy? Keep reading to learn more about USERRA military leave. 

What is the USERRA military leave policy?

What does USERRA stand for? USERRA stands for the Uniformed Services Employment and Reemployment Rights Act. USERRA protects the employment rights of people in military service and those who apply for military service. The Act also prohibits employers from discriminating against past and current military members. 

USERRA is meant to help service members find and keep civilian jobs. All employers must follow the USERRA military leave policy. There is no minimum number of workers you must employ before allowing employees to use military leave.

Display a poster about USERRA rights somewhere that is visible to your employees. Consider hanging the poster in the same place as your other labor law and wage posters.

How long can employees take military leave?

The employment protections under USERRA let employees take up to five cumulative years of military leave. Employees can use this time for both training and extended military service. After five years, the military leave policy no longer applies to your relationship with that employee.

Every time a new employee gets a job with a new employer, the five-year limit starts over.

Exceptions to the length of military leave

USERRA covered leave can extend beyond five years if the employee meets one of eight exceptions. The eight exceptions to the five-year limit of leave include:

1. Military members whose service is required beyond five years to complete an initial period of obligated service
2. Service from a military member who is unable to obtain a release from military duty through no fault of their own
3. Required training for Reservists and National Guard members
4. Orders for involuntary service or those retained on active duty during a national emergency or national security-related situations
5. Members ordered to service or to remain on active duty (not for training purposes) because of war or national emergency declared by Congress or the president
6. Active duty (not for training purposes) by volunteers supporting “operational missions” for which select reservists have been ordered to active duty without their consent
7. Service by members who are ordered to active duty in support of a “critical mission or requirement” of the uniformed services as determined by the secretary of the member’s specific branch
8. Federal service of National Guard members who are called into action by the president to suppress an insurrection, repel an invasion, or execute the laws of the United States

For more information on the exceptions to the five years of military leave, check with the Department of Labor. 

Who is disqualified from using USERRA leave?

Under the USERRA, four circumstances disqualify a service member from using military leave, including:

1. A dishonorable or bad conduct discharge
2. Discharge that is under “other than honorable” conditions. These conditions are typically branch-specific
3. Dismissal of a commissioned officer in specific circumstances involving a court martial or by presidential order in time of war
4. A member dropped from the rolls when the individual has been absent from authority for more than three months or is imprisoned by a civilian court

Leave of absence notice

Before an employee takes military leave, they must give you advance notice. The notice can be written or oral. The employee does not need to give you a copy of their military orders. There is no specific amount of time before their leave that the employee must give you the notice.

When an employee gives you notice, place them on military leave of absence. Once the employee returns from service, your employee is entitled to reemployment rights and other USERRA benefits.

Generally, you do not have to follow the USERRA military leave policy if an employee does not give you advance notice of their absence. But, there are two exceptions to the advance notice requirement. 

An employee does not need to give the employer advance notice if one of the following applies:

• Military necessity prevents the employee from giving notice, OR
• The giving of the notice is otherwise impossible or unreasonable

Looking for an all-in-one solution for tracking leave of absences for your employees? Patriot’s online payroll integrates seamlessly with our HR add-on to let you record leaves of absence, re-hire dates, and more. Start your free 30-day trial today!

What do I need to do while my employee is on military leave?

While an employee is on military leave, you must maintain their job status. An employee can accrue seniority, promotions, and pay raises while they are absent.

Your military leave policy must also allow your employee to maintain their health coverage if they elect to continue it. If you provide other benefits to other employees who are on non-military leave (e.g., jury duty), you must provide similar benefits to employees using military leave.

Do I have to employ them when they come back?

You must give a service member their job if they meet the following five criteria:

1. Their absence from a civilian job was to perform military service
2. They gave you notice before leaving the job, unless they met the exceptions to the notice requirements
3. Their leave did not exceed five years of cumulative service while away from their civilian job, unless their leave falls under the exceptions
4. The employee was honorably released from military service
5. They reported back to their civilian job in a timely manner

You must give the service member the job they had before they took a military leave of absence. Also, give them any promotions and raises they would have earned if they never left.

If you filled the position with someone else, you have to vacate it for the returning service member. The USERRA military leave policy entitles the service member to the position.

However, if you completely eliminated the employee’s position while they were away, you can reasonably deny reemployment. You do not have to offer them a new position within your business. 

If you kept the position in your business, promptly reemploy the service member. There is not a specific amount of time in which you must reemploy the employee. But, this time period tends to be two weeks or less from when they notify you of their return.

You cannot fire the returned service member without legitimate cause. Service members are protected for either 180 days from the date of reemployment (following 31-180 days of service) or one year from the date of reemployment (following 181 days or more of service).

Reporting back to work

To get their job back, the employee must notify you of their return in a timely manner. The time limit to report to you depends on the employee’s length of military service:

• 1 to 30 days: The employee must report back to you at the beginning of the first regularly scheduled work period on the next calendar day (after the employee completes necessary travel and eight hours of rest)
• 31 to 180 days: The employee must apply for reemployment within 14 days of completing their service
• 181 or more days: The employee must apply for reemployment within 90 days of completing their service

Employees who are recovering from an injury received during their service have two years to apply for reemployment.

Accommodations

Accommodate your returned employee by providing them with refresher training plus any other necessary training.

If the employee received any service-related injuries, you must provide reasonable accommodation for the employee.

USERRA military leave vs. FMLA military leave

The USERRA military leave is separate from the leave outlined in the Family and Medical Leave Act (FMLA). Under FMLA military leave, employees may take up to 12 weeks of unpaid, protected leave related to a family member who is a covered military member on covered active duty. 

The FMLA does not apply to service members directly. Instead, service members must use USERRA, while the family members of active duty military can use FMLA for specific reasons. 

This article has been updated from its original publication date of May 25, 2016.

This is not intended as legal advice; for more information, please click here.