With increased military activity and ongoing Guard and Reserve mobilizations, employers should expect more employees to take protected military leave. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to virtually all employers and provides broad protections for service members. USERRA is a floor, not a ceiling—state laws and other leave laws can layer on additional obligations. Use the eight reminders below to align policy, payroll/benefits, and manager practices.
1. Expect More Requests — And You Can’t Say No
Under USERRA, employees do not need employer permission to take military leave. Even if an absence significantly impacts operations, you may not deny a qualifying leave.
Key points:
- USERRA applies regardless of employer size and covers executive, managerial, professional, and part‑time employees.
- Business impact is not a lawful reason to deny military leave.
- Discouraging comments or resistance to requests can trigger USERRA claims.
2. Advance Notice Is Preferred, But Not Always Possible
Guard and Reserve members can be called to duty with limited notice. USERRA requires advance notice when feasible, but not a minimum number of days.
Key points:
- You may request confirmation of the need (e.g., orders) but cannot deny leave if the employee cannot produce documentation at the time of the request.
- Avoid rigid notice rules that conflict with USERRA’s flexibility.
3. Poor Pay Practices Are Pricey
USERRA generally does not require paid military leave; however, pay practices can violate USERRA if military leave is treated less favorably than comparable non‑military leaves.
Key points:
- Compare military leave to similar leaves (purpose, duration, employee choice/control) and document any distinctions.
- Align policies to avoid disparate treatment of short‑term military leave.
Cautionary example
A large employer recently settled litigation after providing pay for other short‑term leaves (e.g., jury duty or bereavement) while making short‑term military leave unpaid. Aligning treatment across comparable leaves matters.
4. Continue Benefits and Other Rights During the Leave
Employees on military leave have specific benefits rights. Errors here often surface later, creating downstream risk.
Key points:
- Offer continuation of existing health coverage as required; track employee premium responsibilities.
- Include military leave time for retirement plan credit and seniority‑based benefits where applicable.
- Track vacation and sick accrual if they accrue during comparable leaves.
- Record merit increases and bonuses the employee would have earned if working.
- Ensure HR, payroll, and benefits teams are aligned on how military leave is coded and tracked.
5. Get Reemployment Rights Right
Returning service members who meet USERRA conditions must be reinstated promptly and correctly.
- Eligibility hinges on cumulative service length (generally less than five years with exceptions), honorable service, and timely return/application.
Timeframes to return
- 1–30 days of service: report by the next regularly scheduled workday.
- 31–180 days: apply for reemployment within 14 days.
- 181+ days: apply within 90 days.
- Service‑related injury: timeframes may extend up to two years.
Key points:
- Reinstate to the “escalator” position (the job the employee would have attained) or a position of like seniority, status, and pay.
- USERRA can overcome at‑will employment; employees returning from >30 days of leave generally have just‑cause protection for a defined period.
- If business changes make reinstatement impossible or unreasonable, document the legitimate, vetted business grounds.
6. Don’t Forget State Overlays
Many states provide additional rights beyond USERRA, including expanded coverage, enhanced benefits, or paid leave mandates. Apply whichever law gives the employee the most generous protection.
Key points:
- Identify which state military leave laws apply to each employee.
- Confirm whether state pay, notice, or benefits rules apply.
- Run leaves concurrently where permitted and avoid reducing entitlements unlawfully.
7. Family Members May Have Rights Too
Employees who are not service members may qualify for military‑related leave under the Family and Medical Leave Act (FMLA) or similar state laws.
- Qualifying exigency leave for certain military‑related needs (e.g., childcare, legal/financial arrangements, or time with a service member on short‑term rest and recuperation).
- Military caregiver leave to care for a covered service member or veteran with a serious injury or illness (up to 26 workweeks under FMLA in a single 12‑month period when eligible).
Key points:
- USERRA leave typically cannot be required to run concurrently with FMLA, but state family military leave may run concurrently where criteria are met.
- Credit qualifying service time toward FMLA eligibility when the employee returns.
8. Culture, Messaging, and Trust Matter
Manager behavior drives claims risk and employee experience. Keep conversations focused on compliance and support, not emotions.
Key points:
- Do not discourage leave or treat service members differently.
- Use consistent, supportive messaging about service obligations and the company’s compliance commitments.
HR Takeaways
- Refresh manager training on how to respond to military leave requests and how not to respond.
- Update written policies to reflect current law, including state overlays and alignment of military leave pay with comparable leaves.
- Audit reemployment, benefits continuation, and coding workflows for accuracy and timeliness.
- Plan for operations: cross‑train, document key processes, and build coverage models for longer deployments.
- Communicate employee rights and responsibilities for taking leave and returning to work.
Are You Prepared for Employees to Go on Military Leave?
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