Employer Guide to Military Leave Under USERRA

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects employees who serve in the uniformed services from employment discrimination and provides reemployment rights after military service. USERRA applies to virtually all employers regardless of size and covers all categories of military service.

Who Is Protected

USERRA protects employees and applicants who serve or have served in:

• The Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard
• The Army and Air National Guard
• The commissioned corps of the Public Health Service
• Any other category designated by the President in time of war or emergency

Protection extends to voluntary and involuntary service, active duty, active duty for training, initial active duty for training, inactive duty training, National Guard duty under federal orders, and examination to determine fitness for service.

Employee Obligations

Employees must provide advance notice of military service:

• Notice may be written or verbal
• Notice should be provided as far in advance as reasonable under the circumstances
• Notice is not required if military necessity prevents it or if giving notice is otherwise impossible or unreasonable
• The employee does not need to get the employer's permission to leave

Employer Obligations During Service

While the employee is on military leave:

• You are not required to pay the employee during military service unless your policy provides for it
• Health insurance coverage must be continued for up to 24 months if the employee elects to continue coverage (the employee may be required to pay up to 102 percent of the full premium)
• The employee's position must be held or a comparable position must be available upon return
• Pension and retirement plan benefits must continue to accrue as if the employee had remained continuously employed
• Seniority and seniority-based benefits must be maintained

Reemployment Rights

When the employee returns from service, they are entitled to reemployment:

• Service of 1-30 days: Return to work the next scheduled work day after safe travel home plus eight hours of rest
• Service of 31-180 days: Apply for reemployment within 14 days after completion of service
• Service of 181+ days: Apply for reemployment within 90 days after completion of service

The employee must be reemployed in the position they would have held had they remained continuously employed (the escalator principle), with the same seniority, status, and pay. If the employee is not qualified for the escalator position, the employer must make reasonable efforts to help them become qualified.

Anti-Discrimination Protections

USERRA provides robust anti-discrimination protections:

• Employers cannot deny initial employment, reemployment, retention, promotion, or any benefit of employment based on military membership or service
• Employers cannot retaliate against anyone for exercising USERRA rights or assisting in an investigation
• These protections have no statute of limitations for filing complaints

Common Employer Mistakes

Avoid these frequent USERRA violations:

• Requiring employees to use vacation or PTO for military leave
• Failing to reinstate the employee to the correct position upon return
• Not continuing health insurance during service
• Treating military leave less favorably than other types of leave
• Terminating an employee shortly after they return from service without a legitimate, documented reason