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Military Leave

Dec. 8, 2021

Military leave for employees is governed by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), sometimes referred to as the Military Leave Act. The USERRA prohibits discrimination in employment against members of the U.S. military or military reserves who seek leaves of absence from their employment to serve in the military. USERRA requires an employer to reinstate employees to their jobs at the end of their military leaves; they may not be terminated or demoted. In addition, if the employee is otherwise qualified, the employee must receive any job promotions or pay increases he or she would have received if leave had not been taken. For purposes of benefits, time spent on leave must be counted as time on the job. Even if an employee who takes military leave is an at-will employee, he or she may not be fired without cause for a year after they return.

In order to receive the protections of USERRA, an employee must fulfill certain requirements. An employee is required to give the employer notice of the intent to take military leave unless military necessity prevents it. The employee must obtain honorable release from the military and must report back to the employer at the end of the leave within a certain amount of time, which depends upon the length of the military leave taken.

Employers are not required to pay employees while on leave or provide health benefits after 30 days. After 30 days, the employee must be given the option to pay for health benefits, as under COBRA. Coverage must be restored in full once the employee returns. Although an employer is not required to continue accrual of vacation and sick days for the period of the leave, an employer must pay its share of contributions to pension plans, and the employee must be treated as if his or her service with the employer had continued without hiatus. In addition, the employee has a certain amount of time to pay his or her share of contributions into the plan upon return. Although an employee taking military leave may request to use his or her vacation time while on leave in order to receive the standard pay rate for that time, an employer may not force an employee to use vacation or sick time.

In addition to the federal protections of the USERRA, almost every state has a law prohibiting discrimination against employees taking military leave and providing rights for such employees, the requirements of which vary from state to state.