The hum of farewell lingers long after the goodbye. A duffel bag leans against the door, boots polished and ready, while a family tries to stretch a fleeting moment into something lasting. Choosing to serve isn’t just an act of courage; it’s a sacrifice stitched into every heartbeat, often invisible to the world left behind. Yet for many, a quiet fear follows them into service: Can you get fired for taking military leave? What the law says about your rights can make all the difference between returning to open arms or facing an empty desk.
Every year, countless service members step away from civilian jobs, teachers, nurses, engineers, and warehouse workers, trusting that their careers will wait for them when their military duty ends. But too often, they come home to find their opportunities erased, their loyalty overlooked.
It doesn’t have to be this way. Awareness is a shield. Knowing your protections empowers you to serve with confidence and reclaim your rightful place afterward.
If duty called tomorrow, would you know how to protect everything you’ve worked for?
Understanding the Law: USERRA and Your Rights
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the primary federal law that protects service members. It guarantees that no individual can be denied initial employment, reemployment, retention, promotion, or any employment benefit because of their military service. USERRA protections apply not only to current employees but also to job applicants and probationary employees, ensuring fair treatment at every stage of employment.
Here’s what USERRA requires:
- Employers must promptly reemploy service members in their civilian employment position after they return from military leave.
- Service members must be restored to the same job (or a comparable one) they would have had if they had remained continuously employed.
- The escalator principle requires that returning employees receive any promotions, raises, or advancements they would have earned during their military absence.
In short, military personnel should not face adverse employment actions simply because they chose or were ordered to serve. In addition to USERRA, some states enforce their own military leave laws that expand these protections. These state laws vary, but they may provide longer leave periods, additional benefit protections, or stricter penalties for noncompliance. Because state-specific rights can differ, service members should consult an attorney familiar with local employment laws to fully understand their protections.
Can You Be Fired While on Military Leave?
The short answer is no, you cannot be fired simply for taking military leave. Federal law, specifically the Uniformed Services Employment and Reemployment Rights Act (USERRA), protects your right to serve without fear of losing your civilian employment.
Whether you serve on a voluntary or involuntary basis, participate in military training, or respond to a national emergency, your position remains protected. This applies across all branches of the armed forces, the National Guard, the Public Health Service, and the National Disaster Medical System.
Employers must honor your service and ensure your civilian job remains available when you return.
When Can You Terminate an Employee on Military Leave?
While the Uniformed Services Employment and Reemployment Rights Act protects service members returning from military leave, the law does recognize limited exceptions where termination may occur. Employers can lawfully terminate an employee if the decision is completely unrelated to his or her military service.
Here are key exceptions:
- Voluntary Resignation: If the service member notifies his or her employer that they no longer wish to return to their civilian job after completing military duty, termination becomes lawful.
- Undue Hardship: If reinstating the employee would impose significant financial or operational strain on the employer, such as during a national emergency affecting business stability, termination may be permitted.
- Legitimate Business Reasons: If adverse employment actions stem from company-wide layoffs, documented poor performance, or business closures, and not the employee’s military status, termination may proceed.
Even in these cases, the law requires employers to:
- Employers must prove that the reason for termination is entirely unrelated to the employee’s military service or military obligations.
- Employers must document that they made reasonable efforts to accommodate the returning service member before considering termination.
- Employers cannot use military status as a hidden factor in the decision; any adverse action must stand on the same grounds that apply to similarly situated employees without military ties.
Under USERRA, the employer bears the burden of proving that the action was unrelated to the employee’s military branch service or training service.
What Protections Exist After You Return from Military Service?
When military service members complete their military duty, federal law requires employers to restore them to their rightful place in the workforce. The Uniformed Services Employment and Reemployment Rights Act (USERRA) guarantees strong reemployment rights designed to safeguard every aspect of the returning employee’s civilian employment.
Upon return, service members must be reinstated:
- To the civilian employment position they would have attained if they had remained continuously employed, factoring in promotions, seniority, and raises they would have earned.
- With the same benefits, including accrued vacation time, pension benefits, and immediate health insurance coverage without new waiting periods.
The law mandates prompt reemployment, usually within a few days after the employee applies to return. Employers must act in a timely manner unless making reasonable efforts to reinstate the employee would cause undue hardship—a rare exception that demands strong proof.
If a disability incurred during active duty prevents a service member from performing their previous duties, the civilian employer must offer reasonable accommodations. If accommodations are not feasible, the employer must place the returning employee in an equivalent role with similar seniority, status, and pay.
USERRA’s health plan provisions also protect military service members during and after leave:
- Employees can elect to continue their health plan coverage for up to 24 months during military leave.
- Upon return, they regain full health insurance benefits without delays or restrictions.
Private employers must comply just like public agencies. Whether you work for a small business, a large corporation, or any private entity, your reemployment rights remain fully protected. Service members must provide employer advance notice of their service whenever possible, unless prevented by military obligations or operational necessity.
These protections apply regardless of whether the service was performed on a voluntary or involuntary basis, across all branches of the armed forces.
Common Employer Violations to Watch Out For
Unfortunately, not every employer honors the protections. Recognizing subtle and obvious violations helps military service members defend their rights early.
Here are critical red flags to watch for:
- Refusing prompt reemployment or delaying the service member’s return to their civilian employment position without valid justification.
- Offering a lower position or reduced pay instead of restoring the employee to the same job they would have held if they had remained continuously employed.
- Failing to reinstate health insurance coverage immediately upon return, in violation of USERRA’s health plan provisions.
- Terminating a service member shortly after military leave, using minor infractions as a pretext for dismissal tied to military obligations.
- Denying pension benefits or seniority adjustments that should have accrued during the employee’s period of military service.
- Refusing to accommodate a disability incurred during service, or failing to offer a comparable position.
- Discriminating in promotions or job assignments, treating returning employees differently from similarly situated employees who did not perform military duty.
Employers who engage in these practices violate federal law and risk serious consequences, including restoring the employee’s position, back pay, and even attorney fees.
FAQ
Can your job fire you for joining the military?
No, your employer cannot legally fire you for joining the military. USERRA protects your right to serve without sacrificing your civilian employment.
What if an employee believes their rights were violated during military service?
If an employee believes they were wrongfully terminated due to military duty or obligated service, they should act immediately. Filing a complaint through the Department of Labor or consulting an employment attorney helps secure rightful reemployment rights.
What does “deny initial employment” mean under USERRA?
Denying initial employment happens when an employer refuses to hire a candidate because of anticipated military service. Federal protections forbid employers from making decisions based on actual or future active duty or training service commitments.
Are private employers and public employers equally bound?
Yes. Whether working for private employers, public agencies, or federal entities, service members’ rights under the Uniformed Services Employment and Reemployment Rights Act remain the same, ensuring fair treatment after completing service.
What must an appropriate officer provide regarding service documentation?
An appropriate officer can issue official documentation confirming obligated service, periods of involuntary active duty, or training service. Employers may request this information to verify eligibility for reemployment protections.
Can military status affect layoffs or workforce reductions?
Military status cannot lawfully factor into decisions about layoffs or reductions. Employers must treat returning military members like other employees based solely on neutral business reasons.
How can you ensure timely reinstatement?
Providing employer advance notice before departure and communicating promptly after service ensures a smoother return. Employees must apply for reinstatement within the timeframes set by USERRA.
Do health insurance protections apply during and after service?
Yes. Employees can elect health insurance continuation during their military leave and regain full coverage immediately upon return, without new waiting periods or limitations.
Know Your Rights, Protect Your Future
Military service is one of the greatest acts of dedication to our country. No service member should ever have to wonder, Can your job fire you if you join the military?
Through USERRA and other protections, the law safeguards your civilian employment, your health plan coverage, and your reemployment rights.
If you believe your rights have been violated, Bourassa Law Group is ready to help. We understand the sacrifice and courage it takes to serve, and we remain committed to ensuring that no one faces employment discrimination for fulfilling their duty.
Contact us today for a free consultation. We are here to offer the guidance, protection, and support you deserve.
1-800-870-8910