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Accommodating Requests for Military Leave and Frequently Asked Questions

By Conrad S. Kee
  • September 19, 2001

In 1994, statutory reemployment rights for military members were revised with the signing of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4333. Like its predecessors, USERRA guarantees the rights of military service members to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other employment protections.

Employer Obligations to Employees Requesting Military Leave

In general, employers must provide to covered employees:

  1. Upon return from active duty, reinstatement to the position that the employee would have held if his or her continuous employment had not been interrupted (the "escalator principle");
  2. Other rights and benefits that are generally provided to individuals of similar status that are on a leave of absence;
  3. Continuation of medical benefits under the same terms and conditions as when actively employed if military service is 31 days or less;
  4. Optional continuation of medical benefits under terms similar to those of COBRA;
  5. All seniority, rights and benefits upon return to work as if the employee had remained continuously employed. Typical benefits covered under USERRA would include vacation allowances, pension credit and 401(k) contributions; and
  6. Protection from discharge upon return to work except for cause for a period of time depending on the length of military service. 

Employee Obligations to Employers Under USERRA

To be entitled to these benefits, employees must:

  1. Give timely notice of their need to perform military service except as required by military necessity;
  2. Apply for reemployment within a set time after release from military service. In the case of service of less than 31 days, the individual must normally return to work on the first work day after release from military service. In the case of service lasting between 31 and 180 days, the individual must normally reapply within 14 days after completing active service. In the case of service lasting more than 180 days, the individual must normally reapply within 90 days after the completion of service; and
  3. Be released from active military service under honorable conditions.

Other Issues

USERRA also prohibits discrimination against service members in employment and provides training obligations for employers under certain circumstances. Employers do not have to reemploy a returning service member if "the employer's circumstances have so changed as to make such reemployment impossible or unreasonable." In addition, employees hired for a brief, nonrecurring period without reasonable expectation that employment will continue indefinitely or for a significant time are not entitled to reinstatement rights.

It should be noted that some states provide additional rights to returning employees. Those rights may be more extensive than those under USERRA.

Frequently Asked Questions

What if an employee volunteers for military service?

USERRA does not distinguish between volunteers and those ordered to perform military service. Employees are protected regardless of whether they volunteered or were ordered to active duty.

Must an employer pay an employee while he or she is on active duty?

USERRA does not require employers to pay employees while on military leave. Some employers voluntarily have policies that make up the difference between military pay and allowances and an employee's regular pay. Employers should review such policies to ensure that the extent of these obligations are consistent with current business objectives.

Can an employer require an employee to use earned vacation time while performing military service?

No, employees are entitled to use earned vacation while on leave but generally may not be required to do so.

What is the "escalator principle?"

Employers must treat returning service members as if they had remained continuously employed for purposes of the position as well as pay and benefits to which they return. For example, if similarly employed individuals who joined the company in 1996 currently earn $15 per hour, then a similarly situated returning service member who joined the company in 1996 should be paid $15 per hour even if he or she had been on active duty for extended periods during that time. As another example, if an apprentice electrician left the company for active military duty in 1999 and returned in 2001, the employee might be entitled to a position as a journeyman electrician.

What if the employee was serving in the National Guard?

National Guard members sometimes perform federal service (e.g., during annual training) and sometimes perform state service (e.g., during some disasters). USERRA only applies to National Guard members performing federal service, but many state laws afford similar protection to individuals performing state service. To determine compliance obligations under these circumstances, employers should obtain a copy of the employee's orders and consult with an attorney.

Is there a limit on the length of military service under the USERRA protections?

Under USERRA employees are only entitled to protection during cumulative periods of military leave of up to five years, but there are many exceptions to this general limitation. For example, leave time for active duty by order of a Presidential declaration would normally NOT count as part of the five year period.

©2001 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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