By Thomas L. Boyer

The rights of employees to a leave of absence for military service and to return to their jobs is governed by the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA provides leaves of absence and reemployment rights to members of the armed forces including the National Guard and Reserves who temporarily leave their civilian jobs to perform military duty. In addition to statutory requirements, most union contracts and many employee manuals and handbooks contain provisions relating to employees performing military service. The USERRA regulations are over 40 pages long but the basics are as follows:

1. An employer may not deny leave to an employee who enters military service including training whether the service is voluntary or involuntary.

2. The law does not require that an employee performing military service including training be paid. However, it is not unusual for employers to pay the difference between an employee’s military pay and an employee’s regular pay for 2 weeks per year to cover National Guard or Reserve training.

3. To obtain reemployment rights,
an employee must provide notice to the civilian employer before leaving for military duty. However, it is not necessary that the notice be in writing and it need not be submitted any specific length of time prior to leaving for military duty. The employee must provide “as much notice as reasonable.” However, when an employee returns to military service of more than 31 days, an employer can require documentation establishing the length and character of the service.

4. Not including required drills and annual training, an employee maintains USERRA rights for a total of 5 years over the course of the entire employment with a single employer.

5. For the first 30 days of military service, an employer must provide the same health insurance at the same employee premium contribution as if the employee was working. The employer should provide notice to the employee entering military service that at the conclusion of 30 days, the employee is entitled to the employer’s group medical insurance for up to 24 months but at the expense of the employee. Consistent with COBRA, the employer may charge the employee in military service up to 102% of the premium. Ordinarily, however, the employee on active duty would qualify for military supplied medical coverage.

6. An employee cannot be compelled to use accrued vacation while performing military service.

7. At the end of military service, an employee must report back to work for the first shift at least 8 hours after returning from military duty of 1-30 days; request reemployment within 14 days after completing military duty of 31–180 days and request reemployment within 90 days after completing military duty of 181 days or more.

8. When an employee returns to civilian work after conclusion of military service, the employee has the benefit of what is commonly referred to as the “escalator principle.” Pursuant to the escalator principle, an employee returning from military service re-enters the workforce under the same wages, benefits and working conditions as if the employee had not left the civilian employer for military service. For example, if the job of the returning employee received a dollar per hour wage increase while the employee was in the military, that employee receives the wage in effect when he returns. The “escalator principle” also applies to seniority, vacation accrual, pension vesting and credit for the period of military service for pension benefit computations.

9. If the period of military service was less than 91 days, the person is entitled to the same job that the employee left. For service of 91 days or more, the returning employee must only be reinstated to a position of “like seniority, status and pay.”

10. Even if a company’s employees are employees-at-will, an employee returning from military service is protected against discharge, except for cause, for 180 days following periods of service of 31-180 days and one year for periods of service of 181 days or more.

In my experience, most employers are generally aware that their employees returning from military service are entitled to certain reemployment rights but, most employers are unaware of the extent of those rights. As I indicted, there are dozens of regulations that apply to USERRA but hopefully, this article provides employers with an outline of their obligations to employees performing military service.



For further information regarding these matters, please contact Mr. Boyer at 248.740.5666 or via email.