Ask Our Experts: Military Leave
Author: Helena Oroz, Senior Legal Editor
Just because an employment law has been around for a while doesn't mean employers no longer have compliance questions. Case in point: USERRA, the Uniformed Services Employment and Reemployment Rights Act, was enacted in 1994 - 30 years ago this year! But Ask Our Experts receives many questions concerning employee rights and employer obligations under this law.
It's Five Years…Right?
Q: I thought USERRA protected an employee's right to reinstatement after military service for only up to five years - why am I seeing something about "exceptions" in an employee's military orders?
A: Because there are exceptions!
The general rule under USERRA is that a person is entitled to reemployment with their employer for up to five cumulative years of military service.
For more information about categories of service excluded from USERRA's five-year service limitation, check out the Guide to the Uniformed Services Employment and Reemployment Rights Act from the U.S. Department of Labor.
However, certain categories of military service don't count toward that five-year limitation, like the two-week annual training sessions and monthly weekend drills mandated by statute for Reservists and National Guard members, for example.
An employer might see language in an employee's military orders stating that their military service is "exempt from the 5-year cumulative service limitation on reemployment rights under Title 38." But even if an employer doesn't see an employee's orders, it should understand that there are exceptions to the five-year limitation and be wary of denying reinstatement on this basis.
Do We Have to Pay for Military Leave?
Q: I thought military leave was unpaid, but I've read some different things. Do we have to pay for military leave?
A: It depends! USERRA doesn't explicitly require employers to provide paid leave - but what you do for military leave may depend on what you do for other types of "comparable" leave.
The USERRA rules state that if the "non-seniority benefits" to which employees on leave are entitled vary depending on the type of leave, then an employee on military leave "must be given the most favorable treatment accorded to any comparable form of leave."
"Non-seniority benefits" are benefits that aren't tied to how long an employee works for an employer. For example, an employer might provide some types of leaves that are paid, and others that are unpaid. If the types of paid leave an employer provides could be considered "comparable" to an employee's military leave, then an employer may have to provide pay during military leave, too.
So, what does "comparable" mean? There's no specific definition, only factors to consider when determining whether two types of leave are comparable:
- Duration of the leave (perhaps the most important factor to compare);
- Purpose of the leave; and
- Ability of the employee to choose when to take the leave.
Don't forget: check those state laws! Some states give employees more rights and protections than USERRA. Always know all the applicable laws in your jurisdiction(s) before making plans or decisions about paid leave.
Whether two leaves are "comparable" is far from clear-cut, though, and frequently litigated. But an informed employer that supports employees serving their country should absolutely have this issue on its radar. Review the paid leaves that you offer, and consult with counsel to ensure that your pay determinations are legally supportable.
Can We Terminate?
Q: We provide paid military leave, but only up to a certain period of time. If an employee doesn't return to work after this initial paid military leave expires, do we place them on unpaid leave or can we terminate them and then rehire later?
A: Place the employee on unpaid leave - do not terminate them!
When an employer thinks it has a legitimate reason for terminating an employee who is serving in the military, I would put money on that employer being wrong (and I'm not a betting individual).
Those rules I mentioned earlier tell you lots of important things about how USERRA is supposed to work, like this:
During a period of service in the uniformed services, the employee is deemed to be on furlough or leave of absence from the civilian employer.
This means that under USERRA, when an employee is serving in the military, in the eyes of the law they are on a leave of absence from the employer. And since USERRA makes it unlawful for an employer to terminate an employee because of their obligations for or performance of uniformed service, that leave of absence is legally protected. Terminating an employee during a protected leave of absence is always a bad idea, even if there are good intentions to ultimately rehire them.
Ask Our Experts Is Here to Help
Employers might have questions about military leave no matter how long USERRA is around - and that's okay.
If you have questions about USERRA, military leave, or other workplace-related challenges, Ask Our Experts is here to help.