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Military leave from work is a leave of absence given to US employees who perform voluntary or involuntary military duty as service members or reservists of the National Guard or another United States Armed Service.
The US Armed Services include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service. Military duty includes both active and inactive duty, such as scheduled reserve service, training duty, funeral honor duty, and related medical examinations.
Military leave can range from a few days or weeks to several years—although it cannot exceed 5 years.
The Uniformed Services Employment and Reemployment Rights Act of 1995 (USERRA) protects the rights of employees who take military leave to return to their former position or a comparable position. Both scenarios must offer the employee the pay, benefits—including paid time off, health insurance, level of seniority, and retirement benefits that they would receive if not for their military service.
Uniformed Services Employment and Reemployment Rights Act of 1995 (USERRA)
USERRA is federal legislation that protects service members from employment discrimination based on their military service or related absence from work. It recognizes the contribution of service members and the potential impact that periods of military service can have on their employment.
USERRA applies to all US employers, regardless of size. In addition to USERRA, employers may also be subject to relevant state laws around military leave.
What Are Your Military Leave Obligations as an Employer?
As an employer, you have several obligations under USERRA.
Firstly, military leave is not optional—you must give an employee a leave of absence for military service when requested. While the employee can choose to use their accumulated paid vacation leave to take military leave, you can’t require them to do so.
When a service member returns to employment, you must either reinstate them in their previous position or offer them a different—but equal—position with the same pay, benefits, and level of seniority.
In practice, this means that you must treat an employee as though they hadn’t taken military leave. Returning employees are entitled to any pay rise, increased seniority, or benefits they otherwise would have received had they not been on military leave.
There are some limited exceptions to re-employment, such as where:
- re-employment would be impossible or unreasonable given a change in circumstances of the employer
- re-employment would cause the employer an “undue hardship”—something that would be difficult or expensive to implement
- there was no reasonable expectation that the service member’s employment would continue because it was for a brief, nonrecurring period.
As an employer, you can’t treat an employee differently or retaliate against them based on their past, present, or future military service. You must also notify your employees of their rights under USERRA—for example, by displaying a USERRA rights poster in the workplace.
Can you terminate an employee on military leave?
You can terminate an employee while they are on military leave if the termination is based on a legitimate business reason, such as a genuine and necessary reduction in your workforce. In practice, this means that the service member’s employment would have been terminated, regardless of their being on military leave.
However, you cannot terminate an employee for taking military leave.
Is military leave from work paid or unpaid?
Military leave is unpaid under USERRA. However, if an employee works part of a week and is then required to go on military leave, you must pay them for the full week.
While an employee is on military leave, you may choose to pay the difference between their regular pay and military pay.
Recent court cases suggest employers may have to provide paid military leave where it’s comparable to other kinds of paid leave based on factors such as the length, purpose, and the voluntary—or involuntary—nature of the leave. It’s therefore worth seeking legal advice about the interaction between your paid leave policy and military leave.
Some state laws provide for paid military leave in certain circumstances.
Do an employee’s benefits continue during military leave?
As an employer, you may need to maintain an employee’s benefits while they are on military leave.
If you allow employees to accrue paid time off during other types of leave of absence, then the same should apply to military leave.
For employees on military leave for 30 days or less, you must continue their health insurance coverage. The employee is required to pay their usual premium during this time. Employees on military leave longer than 30 days can elect to continue their health insurance for up to 24 months, but they may be required to contribute up to 102% of the premium.
Specific rules apply to the different types of employee pension plans. You may be required to make up your employer contributions on an employee’s return to employment.
What Are an Employee’s Military Leave Obligations?
To be eligible for re-employment on return from military leave, an employee:
- must give advance written or verbal notice of their military service to their employer—there is no required format or timeframe for this
- must not take more than 5 years of cumulative military leave—although annual training and monthly drills do not count towards this total
- must receive an honorable release from service
- must contact their employer and return to work within certain timeframes. Employees who served less than 31 days must start work on the first business day after their release. If they served between 31 and 180 days, the employee must contact their employer to reapply for reinstatement within 14 days of completing their service. Where they served over 180 days, this timeframe is 90 days.
What Else Should You Do as an Employer?
Understand your legal obligations around military leave
As an employer, it’s essential to familiarize yourself with the federal and state laws around military leave to ensure your policies and practices follow them. Seek employment law advice on your obligations. You can also speak to the US Department of Labor Veterans’ Employment and Training Service (VETS) for help with understanding your compliance obligations.
Develop military leave policy and procedure
Once you understand your legal obligations, develop a policy and related procedures for military leave in your organization. Standardized procedures ensure your managers know how to handle requests for military leave properly and fully support the re-employment of service member employees.
Promote your military leave policy
In addition to notifying employees of their rights under USERRA, ensure they are aware of your military leave policy and their entitlements under it. This reassures them that you comply with your obligations as an employer and that you will support them in the event they take military leave. You can promote your policy via your employee handbook, intranet, and onboarding materials.
Consider other ways you can support your military employees
Your support of service member employees should go beyond your legal obligations. Think about other ways you can assist them during their absence and especially on their return to work. While they are on military leave, offer to keep in contact with their next of kin to offer them any necessary help and keep the lines of communication open about their return to work. When your employee returns, they may need extra training, time, or other support measures to help them reenter the workforce.
Conclusion
All employers are required to grant service-member employees time off for military duty. At the federal level, USERRA protects the rights of employees in relation to their military service or status—including re-employment with the pay, benefits, and level of seniority they would have been entitled to had they not taken military leave.
As an employer, confirm your legal obligations under both the USERRA and any relevant state laws to ensure your practices are compliant. Beyond this, it’s also important to think about other ways you can support employees who contribute their time and efforts to military service.
