Military Leave: Employees in the Uniformed Services

State and federal leave laws are numerous, and with the usage of family medical leave being more common, it can be hard to keep track of leave laws that are less utilized. One such leave is military leave, sometimes known as USERRA leave. USERRA is the Uniformed Services Employment and Reemployment Rights Act of 1994, which provides job protection for uniformed service members who require leave from work for military service or training.

Who is Covered?

Individuals who perform service in the uniformed services are typically eligible for military leave. Uniformed services refers to the following services:

• Army, Navy, Marine Corps, Air Force, Coast Guard;
• Army Reserve, Naval Reserve, Marine Corp Reserve, Air Force Reserve and Coast Guard Reserve;
• Army National Guard and Air National Guard;
• Commissioned Corp of the Public Health Service; or
• Any other category of persons designated by the President in time of war or emergency.

However, employees are not covered under military leave if they were dishonorably discharged, court marshalled, or if they were absent from military service without authorization for more than three months.

USERRA is broad in its coverage, providing leave for individuals in the above services for the following duties:

• Active duty and active duty for training;
• Initial active duty for training
• Inactive duty training
• Full-time National Guard duty
• Absence from work for an examination to determine a person’s fitness for the above duties
• Funeral honors duty by the National Guard or Reserve members
• Duty performed by intermittent employees of the National Disaster Medical System (NDMS)

Service does not need to be required by a covered service in order to qualify for leave. An employee who volunteers for any of the above duties is also generally covered by military leave.

Notice Requirements

There is no clearly defined time period for an employee to notify their employer of the need to take military leave. Instead, they are just required to provide their employer with advanced notice of the need to take leave. Essentially, employees need to tell their employer of the need for leave before they are absent due to military service. However, there are exceptions. If notice is not possible due to military necessity or is impossible or not reasonable for another reason, advanced notice is not required.

Additionally, unlike most other leave laws, employers cannot require employees to provide written notice. Employees are entitled to provide notice verbally or in writing. Officers in the branch of military in which the employee is serving may also provide notice.

Employers may also not require employees to decide on whether they plan to return after the employee completes their leave.

Amount of Leave Available

Generally, covered employees are entitled to up to five years of combined service. This means that if the length of service, regardless of if the service was consecutive, exceeds five years, then employees may not have job protection.

However, there are certain duties that are not included in the five-year total.

• Military service that lasts more than five years because the service member is required to complete their initial service commitment.
• Military service that lasts longer than five years because the service member cannot obtain a discharge or release, through no fault of their own.
• Required training for Reservists and National Guard members.
• Called to involuntary military service or required to remain on active duty because of a domestic emergency or national security need.
• Called to serve or kept on active duty, other than for training, due to a war or national emergency declared by the President or Congress.
• Active duty, other than training, performed by volunteers supporting an operational mission when Selected Reservists have been involuntarily called to active duty.
• Active duty ordered to support a mission or need that the military has determined is critical.
• Federal service by National Guard members who are called into duty by the President to respond to an invasion, suppress an uprising, or enforce federal law.

These eight reasons may be taken in addition to the five combined years of service.

Documentation

Unlike many laws governing leave, documents supporting the need for leave may only be requested in very specific circumstances. First, if an employee takes leave for less than 30 days, such as a week-long training period, documentation may not be required. However, if an employee is on leave for 31 days or more, an employer may require documentation, but only upon an employee’s return to work.

The documentation may include information showing that the application for reemployment is timely (details below), the five-year leave limit has not been exceeded, and the employee’s separation from service does not disqualify the employee from job restoration.

Job Protection

Reemployment

Employees on military leave are generally entitled to job protection. Essentially, they must be returned to work following their military service, provided that the employee reapplies to return to work. If the employee does not reapply, then they are typically not entitled to be reemployed. However, there are different timelines for employees to return to work. An employee does not need to submit an official application for reemployment. The employee just needs to make their employer aware that they are seeking reemployment.

If the employee is on leave for up to 30 days, no application for reemployment is necessary. Instead, the employee must generally return to work their first regularly scheduled shift on the next calendar day after they complete their service. There may be exceptions to this timeline, as the leave allows for employees to travel home and rest for 8 hours before reporting for work.

If the employee is on leave for 31 to 180 days, they have 14 days to submit an application for reemployment. For employees who are on leave for 180 or more days, they are required to apply for reemployment within 90 days after completing service.

Job Restoration

The job to which the employee is returned upon completing leave relies on the “escalator” principle. Unlike most leave laws, where employees must be returned to their former position, employees returning from military leave must be restored to the position that they would have had if the employee had not taken leave, retaining their full seniority. This means that, depending on the circumstances, an employee might not be returned to their former position. If a business reorganizes and they would have been transferred to a lower-level position as a result of the reorganization, even if the employee were not on leave, then the employee could be returned to the lower-level position. The escalator principle also applies to promotions. If the employee would have reasonably been promoted if they had not been on military leave, then they would generally be entitled to the promotion upon their return. Additionally, if the employee would have been laid off even if they had not been on leave, then they could be laid off.

It’s important to note that any changes in job must have occurred regardless of the employee taking leave, not as a result of an employee taking military leave.

Health Insurance

Employers are not required to maintain an employee’s health insurance for the full duration of the employee’s leave, unlike many other leave laws. Employee health benefits must be maintained for the first 30 days at the same rate as prior to the employee’s leave. This means that, during this time, the employee cannot be required to pay more than the premium they were paying before they went on leave. After 30 days, it is the employee’s choice on whether to continue their health care coverage for up to 24 months during their leave. If they elect to continue their coverage, the employer may require them to pay up to 102 percent of the full premium.

Military leave can be complicated as requirements often depend on the length of the leave and differ from more highly utilized leave laws. For more information on military leave, please visit our FAQs. You can also contact us at compliance@cascadeemployers.com with any questions.