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Military Leave Law

Military Leave Law

The Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) provides job protection to workers who serve in the military, typically those in the National Guard or military reserves. More specifically, USERRA prohibits employers from engaging in discriminating acts against employees who serve in the military and provides eligible service members with job reinstatement rights upon completion of military service. The law applies to all employers, but does not require the employer to pay the employee during military leave.

Military Leave Eligibility

The right to reinstatement in a civilian job applies to individuals who voluntarily or involuntarily serve in the military, or who have served in the military. All employers are required to comply with the law, regardless of size. USERRA benefits apply to the following type of uniformed service:

  • Active duty, including Reserve and National Guard duty
  • Active duty for training
  • Initial active duty for training
  • Inactive duty for training
  • Full-time National Guard duty

Reemployment Eligibility

When a service member returns from military leave, the guarantee of reemployment in a civilian job applies if:

  • The employee gave the employer advanced written or verbal notice of military service or training
  • The employee’s cumulative military leave does not exceed 5 years
  • The employee was discharged under honorable conditions
  • The employee applied for reemployment within the specified time

The USERRA provides exceptions to the five-year limitation when certain situations apply. For instance, this limitation is inapplicable when the service member is unable to obtain a release from service, must participate in necessary training, or the service occurs during a time of war or a national emergency. Also, employers are required to make every effort to provide reasonable accommodations for military service members with disabilities.

There are limited instances where an employer is not required to rehire a military service member returning from active duty. These include the following:

  • Changes in the workplace make it impossible (or nearly so) to reinstate the employee
  • Reinstatement would create an undue hardship for the employer (in the context of a disability, this could be the unavailability of a reasonable accommodation)
  • Employment of service member was so brief that there should be no reasonable expectation to return

Military Leave Benefits

The law protects a service member’s job status, pay, and benefits as if he or she was not away at active duty. For example, the service member who leaves for six months of active duty should get the same pay raise as his or her non-military peers (assuming performance levels and seniority are equal). Upon reemployment, the employer must:

  • Count the employee’s military leave toward seniority status: The service member is entitled to increased pay, promotions, benefits, and pension vesting as if continuously employed.
  • Provide training: If the employee is not qualified for the reinstatement position, the employer must make “reasonable efforts” to qualify the employee.
  • Not discharge the employee without cause: The law prohibits an employer from discharging an employee for 180 days if service was for 31 to 180 days or for one year if service exceeded 180 days.
  • Offer immediate reinstatement of health insurance coverage: The employer cannot impose a waiting period on health insurance coverage for the employee and the previously covered dependents of the employee.

State Military Leave Protection

Many states have military leave laws that protect workers that serve in a state militia, the National Guard, or as a reservist. Laws vary by state, but most prohibit discrimination against employees that serve in the military and entitle the worker to unpaid leave. Laws typically also provide reinstatement rights and protect the worker’s benefits. For example, Washington state law prohibits employers from denying employment, reemployment (after taking a leave for active duty service) or employment benefits to servicemembers because of their military association and obligations.

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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About the Author

People who want a lot of Bull go to a Butcher. People who want results navigating a complex legal field go to a Lawyer that they can trust. That’s where I come in. I am Michael Anderson, an Attorney in the Salt Lake area focusing on the needs of the Average Joe wanting a better life for him and his family. I’m the Lawyer you can trust. I grew up in Utah and love it here. I am a Father to three, a Husband to one, and an Entrepreneur. I understand the feelings of joy each of those roles bring, and I understand the feeling of disappointment, fear, and regret when things go wrong. I attended the University of Utah where I received a B.A. degree in 2010 and a J.D. in 2014. I have focused my practice in Wills, Trusts, Real Estate, and Business Law. I love the thrill of helping clients secure their future, leaving a real legacy to their children. Unfortunately when problems arise with families. I also practice Family Law, with a focus on keeping relationships between the soon to be Ex’s civil for the benefit of their children and allowing both to walk away quickly with their heads held high. Before you worry too much about losing everything that you have worked for, before you permit yourself to be bullied by your soon to be ex, before you shed one more tear in silence, call me. I’m the Lawyer you can trust.