Military Leave and Reinstatement Rights for Employees

by Michael C. Petersen

Summer 2003

In this time of military conflict, it is very important for employers to understand their obligations to allow military leave and reinstatement for employees who are in the armed services. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) sets forth the duty to allow military leave and reinstatement to employment. USERRA prohibits employers from discriminating against individuals who are members of or who have applied to be members of a uniformed service. It also allows employees to take up to five years of military leave and to receive reinstatement to employment when the leave is over. USERRA applies to all employers regardless of size.

All individuals who perform "service in the uniformed services" are allowed to take military leave from work. Uniformed services include the Army, Navy, Air Force, Marines, Coast Guard, Army National Guard, and Air National Guard. Military leave must be allowed for periods of active duty and for training, whether the training occurs during active or inactive duty. USERRA requires employees to give employers prior written or oral notice of the need for leave. However, the notice requirement does not apply when military necessity renders it impossible or unreasonable.

Employers generally need not pay employees during periods of military leave. However, if employers provide continued benefits (like health insurance, life insurance, etc.) during any other types of leave, they must provide those same benefits to employees on military leave. If employees so choose, they may use accrued vacation during military leave. However, employers cannot force employees to use accrued vacation.

When military leave ends, employees are entitled to reinstatement. To obtain reinstatement, employees must apply for it with their employers. Employees on military leave lasting between one and 30 days, must report back to work by the start of the next regularly scheduled work period after the expiration of an eight hour rest period. Employees on military leave of more than 30 days but less than 181 days, must apply for reemployment no later than 14 days after the end of their military service. Employees on military leave of more than 180 days, must apply for reemployment within 90 days after the end of their military service. Those application deadlines may be extended for up to two years for employees suffering from a service-related illness or injury.

Employees who properly apply for reemployment are generally entitled to reinstatement to the positions they would have attained if they had been continuously employed during the period of military leave (so long as they are qualified) or to their prior positions, even if temporarily filled by a replacement worker. Employers must disregard periods of military leave in determining entitlement to seniority and other benefits like vacation leave. Returning employees may make up missed contributions to retirement plans, and employers are required to make up non-elective contributions that they would have made during the period of military leave. Finally, and significantly, returning employees who were on military leave for more than 30 days but less than 181 days may not be terminated except for cause for a period of 180 days. Returning employees who were on military leave for more than 180 days may not be terminated except for cause for a period of one year.

Employers who violate the provisions of USERRA can face serious consequences. The U.S. Department of Labor may prosecute violations. Additionally, employees have a private right to sue for lost wages, benefits, and attorney fees. For willful violations, employees may also recover additional penalties.

During this time of increased military activity, employers must keep an eye on their obligations under USERRA.