The spike in U.S. military activity this year—both abroad and at home—is likely to increase the scope, frequency, and duration of deployments for Reserve and National Guard troops. Many of these troops are workers who must leave their civilian jobs to deploy.
If you are currently on military leave or anticipate being called to service, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects your right to return to your job. But these protections come with specific requirements and deadlines you must meet. Missing a deadline or failing to follow the proper procedures could cost you your reemployment rights.
Here are 10 things every worker needs to know about military leave to protect both your career and your livelihood.
- Your Service Is Capped at Five Years (With Important Exceptions)
USERRA caps your combined military service with any single employer at five years if you want to keep your reemployment rights. Here is what you need to know:
How it’s calculated: The five-year limit is the total of all your non-exempt service periods with your current employer. Service with a previous employer does not count—a separate five-year clock applies to each employer relationship.
Important exemptions:Â Many common service types do not count toward the five-year limit, including required Reserve and National Guard training; service beyond five years to complete your initial obligated service period; inability to obtain release orders before the five-year period expires; involuntary active duty during wars and national emergencies; and National Guard activations to respond to invasions, rebellions, or insurrections. Service orders typically indicate whether your service qualifies for an exemption from the five-year limit.
- You Must Notify Your Employer Before Leaving for Service
Give notice: You must give your employer advance notice of your military service unless it is impossible, unreasonable, or prevented by military necessity. Notice can be oral or written, but written is better—keep a copy for your records.
Your reason matters:Â Your absence must be for the purpose of performing military service. It is fine if you have multiple reasons for leaving, as long as one of them is military duty.
- You Have Rights While You’re Away
Your employment status: USERRA considers you on a leave of absence while you are serving. Your employer cannot legally label you as “terminated” or force you to resign.
Non-seniority benefits:Â Your employer must give you the same benefits not based on seniority that coworkers at your job level receive during non-military leaves. You may need to pay the employee cost, but no more than what other employees pay.
Wages:Â In some cases, you may be entitled to pay during military service if employees in similar positions receive pay for comparable non-military leaves. Factors to compare include the length of leave, its purpose, and your control over the timing.
Health insurance: You can elect to continue your employer-provided health coverage (and your dependents’ coverage) for up to 24 months while serving. For service longer than 30 days, you can’t be charged more than 102% of the premium. For shorter service, you pay only the regular employee rate.
Accrued leave: You have the option to use your accrued vacation, annual, or similar paid leave while away for military duty. This is your choice—your employer cannot force you to use your accrued paid leave time.
- The Type of Discharge You Receive Affects Your Rights
The nature of your discharge matters. Separation from service under any of the following circumstances cuts off the right to reemployment:
- A dishonorable or bad conduct discharge
- An “other than honorable” discharge as designated under regulations
- Dismissal of a commissioned officer by general court-martial or presidential order during war
- Removal of a commissioned officer from the rolls due to unauthorized absence or civilian imprisonment
If such a discharge is later upgraded retroactively, the upgrade removes the disqualification.
- You Must Seek Reemployment Within Specific Deadlines
When you complete your military service, you must seek reemployment within specific deadlines based on how long you served:
Service 1 to 30 days:Â Report to work by the start of your first regularly scheduled shift on the first full day after completing service, provided you have had time to safely travel home and an interval of eight hours after arriving home. If meeting this deadline is impossible or unreasonable through no fault of your own, report as soon as possible.
Service 31 to 180 days:Â Apply for reemployment within 14 days after completing service. If the deadline is impossible or unreasonable through no fault of your own, apply as soon as possible.
Service 181 days or more:Â Apply for reemployment within 90 days after completing service.
How to apply:Â Your application can be oral or written, but written is better for your protection. State that you are a returning servicemember who previously worked for the employer and are seeking reemployment. Submit it to your employer or an HR manager responsible for receiving applications. Keep a copy for your records.
Hospitalization or recovery:Â If you are hospitalized or convalescing from an injury or illness incurred in or aggravated during your performance of military service, you must report or apply at the end of your recovery period. The recovery period cannot exceed two years from completing service (extended if meeting the deadline is impossible or unreasonable).
- Your Employer Can Only Ask for Certain Documents (And Only After Longer Leave)
For service longer than 30 days, your employer can request documentation showing that:
- Your reemployment application was timely
- Your service didn’t exceed the five-year limit
- You didn’t receive a disqualifying discharge
Your employer cannot delay your reemployment if the documentation does not exist or is not readily available. However, if you were absent more than 90 days, your employer can delay making retroactive pension contributions until you provide satisfactory documentation.
- Your Employer Must Place You in the Right Job
If you qualify for reemployment under USERRA, your employer must promptly place you into a job required by USERRA. Which job generally depends on how long you served and what your “escalator position” would be.
Understanding the “escalator position”: Think of your career as riding an escalator. The “escalator position” is where you would be if you had never stepped off for military service—the job you would have had if you had stayed. This could be the same job you had before, a transfer to a different position, a promotion you would have received, or even a layoff or termination.
For service of 1 to 90 days:
Your employer must place you in the escalator position. If you need training or a refresher to do that job, your employer must make reasonable efforts to help you qualify. If, despite those efforts, you do not become qualified for the escalator position, your employer must place you back in your preservice job and provide reasonable efforts to help you qualify for it. If you do not become qualified for your preservice job despite your employer’s efforts, your employer must then place you in an alternative position with the nearest approximation of seniority, status, and pay.
For service of 91 days or more:
Your employer must place you in either the escalator position or a job that is equivalent in seniority, status, and pay. Again, if you need training to qualify, your employer must make reasonable efforts to help you qualify. If, despite those efforts, you do not become qualified for the escalator position (or its equivalent), your employer must place you next in your preservice job or an equivalent position, with reasonable training efforts. If you do not qualify for your preservice job or its equivalent despite the employer’s efforts, your employer must then place you in an alternative position with the nearest approximation of seniority, status, and pay.
If you have a service-related disability:
If you developed or worsened a disability during your period of service, your employer must make reasonable efforts to help you qualify for the escalator position and accommodate your disability. If, despite those efforts, you do not become qualified for the escalator position, your employer must place you next in an equivalent job (same seniority, status, and pay) and make reasonable efforts to accommodate your disability and qualify you for the position. If you do not become qualified for an equivalent position despite the employer’s efforts, your employer must then place you in an alternative position with the nearest approximation of seniority, status, and pay.
- You Can Make Up Missed Promotion Opportunities
If you missed a promotion test while serving, your employer should let you take a makeup test and give you enough time to prepare. If you pass and there is reasonable certainty you would have been promoted (or made eligible for promotion) during your absence, your employer must promote you or grant promotion eligibility as if you never left.
- You Keep Your Seniority and Pension Rights
When you are reemployed, you should not lose seniority or pension rights. You should be treated as if you were continuously employed throughout your military service for purposes of determining seniority and any rights and benefits based on seniority. This means:
Seniority:Â Your entire absence counts as time at work when calculating seniority and seniority-based rights and benefits. Rights and benefits are seniority-based when determined by longevity in employment.
Pension contributions: Your employer must make up the pension or retirement plan contributions it would have made if you had not been away. If employees contribute to the plan, you can make up your contributions over a period that’s three times the length of your service (but no longer than five years), starting from your reemployment date.
- You Are Protected from Discrimination, Retaliation, and Wrongful Termination
If your service period lasted more than 30 days, USERRA temporarily protects you from discharge without cause after you return:
- Service 31 to 180 days:Â Protected for 180 days starting the day after reemployment
- Service over 180 days:Â Protected for one year starting the day after reemployment
Even if you are normally an at-will employee, this protection suspends your at-will status during the protected period.
Additional protections:Â Regardless of service length, USERRA protects you from:
- Discrimination based on your past, current, or future military service or status
- Retaliation for exercising your USERRA rights
- Retaliation for seeking to enforce USERRA rights or participating in a USERRA investigation or proceeding
Know Your Rights and Protect Your Career
USERRA provides strong protections for service members taking military leave, but you need to follow the law’s requirements to ensure reemployment. The most critical points to remember: notify your employer before leaving, meet your reemployment deadlines, do not exceed the five-year service limit, and keep records. USERRA’s protections exist to ensure you don’t have to choose between serving your country and keeping your job.
If your employer has denied you reemployment, delayed your reemployment, demoted you upon return, discriminated against you for your military service, or retaliated against you for asserting your USERRA rights, you may have legal claims under USERRA. Do not wait. These situations require prompt action.
This article provides general information about USERRA protections, but every situation is unique. If you believe your employer has violated your military leave rights, or if you have questions about your specific circumstances, consult experienced USERRA lawyers. Sass Law Firm represents and fights for the rights of service members in employment disputes.