Military leave policies employers must follow are not just guidelines—they are critical legal requirements that ensure fair treatment of our nation’s military service members. This includes the military leave policies employers must follow to keep a balance in the system. There’s a reasonable expectation that employees must meet in a timely manner.
Whether an employee is called to active duty, engaged in military training, or serving in the National Guard, employers must navigate complex laws like the Uniformed Services Employment and Reemployment Rights Act (USERRA) to stay compliant. Having a strong military leave policy in place is essential.
Understanding The Military Leave System
Understanding and managing military leave is essential for both public and private employers. Failure to adhere can result in serious legal consequences, including lawsuits and penalties involving military leave laws, state military leave laws by state, and federal military leave laws.
Moreover, it also matters if the person previously held an important duty or if the duty performed was done honestly and wholeheartedly.
The Foundation: USERRA
At the core of every compliant military leave policy for employers is USERRA, a federal law that protects the employment and reemployment rights of those who serve in the uniformed services, whether on a voluntary or involuntary basis.
Enacted in 1994, USERRA ensures that individuals who leave their civilian employment to perform military service or training service can return to their job without losing seniority, benefits, or opportunities for advancement.
Key Provisions of USERRA
Here are the key provisions of USERRA for employees taking a leave of absence for military service.
1. Advance Notice
Employees must provide advance notice to their employer unless military necessity or impossibility excuses them.
2. Five-Year Limit
Employees may be absent for up to five years cumulatively for military duty without forfeiting employment and reemployment rights.
3. Reemployment in Equivalent Position
Returning service members must be reemployed in the position they would have attained if they had remained continuously employed (the “escalator principle”).
4. Reasonable Efforts
Employers must make “reasonable efforts” to accommodate disabilities incurred during military service.
5. Protection Against Discrimination
Employers cannot discriminate against individuals because of past, present, or future military obligations.
These provisions apply until and unless there’s a national emergency declared for military members. That’s a situation where an employee’s absence is not acceptable and they must report to his or her employer immediately.
Who Is Covered?
When it comes to USERRA, the employee returns immediately when called upon. This applies to services throughout the US. Why? Because USERRA covers all service members, including:
– Active Military Duty Personnel
– National Guard and Armed Forces Reserves Members
– Public Health Service Commissioned Corps Members
– Participants in the National Disaster Medical System (during a national emergency)
Both private employers and the federal government must comply with these laws concerning personnel management. Similarly, USERRA violations lead to hefty financial fines, which is why military service members should keep this in mind when making any move.
Conditions for Reemployment
If you’re interested in getting reemployment with any of the services in the U.S., you need to know the conditions for it. Here’s a quick rundown of them.
Advance Notice
Provided to the employer before leaving for federal service.
Service Duration
Cumulative absence for such service must not exceed five years, except under specific circumstances.
Timely Return
The employee must report back or apply for reemployment within a specific timeframe.
Honorable Service
The service must be under honorable conditions.
Example: A reservist called to active military service for one year must request reemployment within 90 days of discharge to their pre-service employer.
Seniority, Status, and Pay
Upon reemployment, the employee is entitled to:
– The Same Job or a Comparable Position
– Seniority Status and Pay
– Restoration of Health Insurance and Pension Contributions
Employers must also continue to provide health insurance for a period of up to 24 months while the employee is on military leave.
Managing Military Leave During Emergencies
During events like a national emergency or when military necessity demands, employees may be called to perform military service with very little notice. Employers must adjust their military leave policy to accommodate employees’ leave of absence.
Scenario:
In 2020, many National Guard members were activated for the COVID-19 pandemic response, emphasizing the importance of managing military family leave.
State-Specific Military Leave Laws
Many states offer additional rights under military leave laws:
California
Employers must grant unpaid military leave and reinstate employees to the same or a similar position.
Texas
State law mirrors USERRA protections and grants leave for members called into duty by the state governor.
New York
Members of the organized militia are entitled to leave for military duty without loss of seniority or benefits.
Employer Contributions and Civilian Pay
Employers are not required under USERRA to continue civilian pay during a period of military service, but some voluntarily supplement military pay.
Employer contributions to retirement plans must continue if the employee elects to make up missed contributions.
Special Circumstances: Funeral Honors Duty and Military Caregiver Leave
Funeral Honors Duty
Individuals performing funeral honors are covered by USERRA.
Military Caregiver Leave
Under the Family and Medical Leave Act (FMLA) and the Family Military Leave Act, eligible employees may take leave to care for a military family member with a serious injury or illness.
Common Misconceptions
Misconception #1: Job Elimination Means No Reemployment Rights
Reality: If the employer’s circumstances allow, they must reinstate the service member or provide a comparable position with reasonable certainty.
Misconception #2: Immediate Reinstatement Required Regardless of Hardship
Reality: If reemployment would impose an undue hardship, adjustments may be permitted.
Misconception #3: Only Overseas Deployment Qualifies
Reality: USERRA protections extend to training service, military training, emergency deployments, and obligations of reserve military personnel.
Layoff Status and Managing Extended Absences
Employees called to active duty may spend a significant period away from their civilian jobs. Employers must differentiate between a resignation and a leave of absence to protect employees’ Reemployment Rights act status.
Best Practices for Employers
- Maintain clear documentation of the period of military service.
- Update policies based on changes in services, employment, and reemployment.
- Train HR staff to ensure compliance.
- Guarantee compliance with the Reemployment Rights Act (USERRA).
- Ensure employees who remain continuously employed post-return receive full benefits.
Final Thoughts
Military leave policies employers must follow are not mere formalities—they embody a national commitment to those who protect our country. Understanding and applying military leave laws, federal service regulations, and reemployment rights strengthens organizations and supports our service members.
Understand Military Leave Policies Employers Must Follow With BLG
For employers needing assistance with managing military leave or service members needing help asserting their rights under USERRA and related laws like the Family Military Leave Act, contact Bourassa Law Group today.
Our experienced employment attorneys specialize in protecting your career, your benefits, and your future. Schedule your free consultation now and let us advocate for your service and dedication.
Supporting those who serve ensures that they, too, have a future worth fighting for.
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