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Job-Protected Leave: Know Your Rights – Military Leave Under the Uniformed Services Employment and Reemployment Rights Act (USERRA)


Our third blog in the Job-Protected Leave series addresses your employment rights as a military service member. When you report for military duty, the law requires your employer to keep your job or a similar job open for you until you return. What’s more, you are entitled to all the job benefits that you would have had if you had stayed on the job instead of reporting for military duty.Picture of military man walking to house with backpack

The Uniformed Services Employment and Reemployment Rights Act, also known as USERRA, is the law that protects your job while you’re on active military duty. Your employer must give you your job back when you return. If you work for a U.S. company or governmental agency, are an active member of the U.S. military (or are a veteran who reported for duty while working for a U.S. employer), USERRA applies to you.  What this means is you have the right to be re-employed under the same basic terms and conditions of employment as before you went on military duty, along with the same job-related benefits that you would have had if you had not taken military service leave. Keep in mind that although your military leave is not a paid leave, you may be able to use your available paid time off.  Another perk is that under COBRA you have the right to continuing health insurance coverage for up to 24 months.

However, you are NOT protected under USERRA if you were discharged from the military under “other than honorable conditions.” It also will not apply if you’ve taken more than five years of consecutive military service leave while working for the same employer (although there are exceptions to this rule), or your employer had a legitimate reason to fire you.

Making sure that USERRA protects you is easy if you take the following three steps:

  1. Let your employer know in advance about your upcoming military service by writing them a letter or e-mail.  Make sure to keep a copy for your records.
  2. After you return from military duty, contact your employer as soon as you can.  There are specific time frames involved for reporting back to work, so the sooner the better. If your employer has you formally reapply for your job by filling out an application or providing a resume, don’t take offense.  Although your employer has the right to make you reapply for your job, this will NOT affect your rights under USERRA.
  3. Be ready to provide documentation about your absence and your ability to return to work. If you were on military service leave for more than 30 days, your employer can ask for documentation and you need to provide it.

If your employer refuses to rehire you, you can pursue your USERRA rights.  Under this law, your employer has a duty to rehire you unless you gave your employer a letter before you left clearly stating that you did not intend to return to work once your military service ended. USERRA also protects you from discrimination and retaliation because of past, current or future military service.

If you or a family member has returned from military leave and been denied re-employment, consider contacting an experienced attorney to go over your rights and remedies under USERRA.

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