Military leave is legally protected time off for employees serving in the uniformed services. The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides comprehensive protections ensuring service members can fulfill military obligations without jeopardizing civilian employment.
For restaurants, retail, and service businesses employing part-time staff, military leave obligations arise more often than many managers realize. National Guard and Reserve members are common in hourly workforces.
Who's Protected Under USERRA?
- Army, Navy, Air Force, Marine Corps, Space Force (active and reserve)
- Army National Guard, Air National Guard
- Commissioned corps of Public Health Service
- Any other category designated by the President during war or emergency
Protection applies to:
- Active duty
- Active and inactive duty training
- Initial active duty training
- Fitness for duty examinations
- Funeral honors duty
Key USERRA Protections
1. Reemployment Rights
Employee returning from military service (up to 5 years cumulative) must be reemployed in the position they would have held if continuously employed (with seniority, pay increases, etc.) or the position they left, depending on length of service.
Short service (1-90 days): Report back to work by next regularly scheduled shift after end of service plus 8-hour rest period.
Longer service (91-180 days): Apply for reemployment within 14 days of completing service.
Extended service (181+ days): Apply for reemployment within 90 days.
2. No Discrimination
Employers cannot discriminate based on military service or obligation. Cannot deny initial employment, retention, promotion, or benefits based on military status.
3. Benefits Continuation
Health insurance: Service members can continue employer health coverage for up to 24 months during service (similar to COBRA). If service is less than 31 days, employer must continue coverage at no cost to employee.
Pension: Military service counts toward vesting and benefit accrual.
Seniority: Employee earns seniority-based benefits as if continuously employed.
State Military Leave Laws
Many states provide additional protections:
California: Employees called to active duty are entitled to reinstatement and cannot be terminated for being activated.
New York: Military Law Section 242 provides up to 30 days paid leave annually for employees ordered to active duty.
Many states require paid military leave for training (typically 2 weeks annually). Check state requirements.
Practical Management
When Employee Gets Orders
Step 1: Employee provides notice (verbal or written) of military service. Can be as short as same-day notice for emergencies.
Step 2: Request copy of orders if service is more than 30 days (not legally required but helpful for documentation).
Step 3: Document employee's position, pay, benefits, and seniority.
Step 4: Explain reemployment rights and application deadlines.
Step 5: Discuss benefits continuation options.
During Service
Stay in touch: Sending occasional updates keeps employee connected. Many service members appreciate knowing a job awaits them.
Don't fill position permanently: Hire temporary replacement or redistribute duties. Making position permanent violates reemployment rights.
Upon Return
Prompt reemployment: Once employee applies, must be reemployed within 2 weeks (or next pay period if sooner).
Reinstatement training: If job duties changed during absence, provide training.
No probation period: Cannot require returning service member to re-prove themselves.
Document: Keep all records (orders, application for reemployment, reemployment date, position assigned).
Common Scenarios
Weekend training: Guard member drills one weekend monthly. USERRA protects these absences. Schedule around them when possible. Cannot treat as unexcused absences under attendance policy.
Annual training: Two weeks active duty annually. Plan for coverage. Cannot deny training leave.
Deployment: Called to active duty for 6-18 months. Hold position (or comparable position) open. Employee has reemployment rights upon return if they apply within 90 days.
Activation during probation: New hire completes 2 weeks of training, then gets deployment orders. Still entitled to reemployment rights despite short tenure.
What Employers Cannot Do
Deny initial employment: "We don't hire Guard members because they're unreliable" is illegal discrimination.
Terminate or discipline for military absences: Cannot count against attendance. Cannot discipline. Cannot terminate.
Deny promotion: Cannot skip over service member for promotion while they're on military leave.
Require use of vacation: Service member can request to use paid time off, but cannot be required to.
Retaliate: Any adverse action motivated by military service violates USERRA.
Employer Rights
Request documentation: After 30 days service, can request proof of service and timely application for reemployment.
Deny reemployment if:
- Employer's circumstances changed making reemployment impossible or unreasonable
- Employment was brief and with no reasonable expectation of continuing employment
- Employee was dishonorably discharged
- Employee fails to apply for reemployment within required timeframes
These exceptions are narrow. Consult legal counsel before denying reemployment.
Filing Complaints
Service members who believe their USERRA rights were violated can:
- File complaint with Department of Labor Veterans' Employment and Training Service (VETS)
- Request DOL refer case to Department of Justice for representation
- File private lawsuit
Penalties include reinstatement, back pay, liquidated damages (double back pay if violation was willful), and attorney's fees.
The Bottom Line
USERRA provides strong protections for service members. Employers who view military obligations as inconvenient absences to discourage face legal liability. Those who accommodate military service and express appreciation for employees' service build loyalty and comply with law.
When a team member says "I have Guard duty next weekend," the correct response is "Thank you for your service. We'll work around it."
