Military Leave: What is the Employer’s Obligation?

With Reserve members being deployed to respond to recent natural disasters, we have been fielding questions about uniformed service members’ employment rights. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects civilian job rights for veterans and members of the active and reserve components of the military. Unlike many other employment laws, USERRA applies to employers of all sizes. It provides (1) reemployment of returning service members in the job they would have had but for their military service, with the same seniority, status, pay and benefits as if there was no break in employment; (2) the right to be free from discrimination or retaliation related to military service; and (3) the right to continue employer-based health insurance coverage for up to 24 months while in the military.

While the employer is not required to pay the employee during the leave, an exempt employee who takes military leave for a partial week is entitled to pay for that full workweek under the Fair Labor Standards Act. The accrual and use of paid time off during the leave is not required unless the employer allows similarly situated employees on leave to accrue and use paid time off.

Upon return from duty, the employee is entitled to not only return to the same pay but to be entitled to any pay raises he or she would have received had there been no absence, pursuant to the law’s escalator clause. Employees returning from duty are also provided a grace period during which they may be terminated only for cause. The length of the grace period depends on the length of the most recent service. Employees who served 31 to 180 days have a 180 day grace period. Those who served more than 180 days have a one year grace period. And, there are broad provisions against discrimination and retaliation against members of the uniformed services for their protected status as members or for exercising their rights.

There are some exceptions to these employer obligations, and the facts in individual cases would require further consideration.