Military leave may seem like a niche type of leave, but it’s something employers need to understand thoroughly. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) covers virtually all employers in the United States, providing up to five years of military leave by protecting reemployment rights for employees.
But USERRA isn’t the only statute that provides military leave. A host of states including California, Illinois, and New York maintain laws that require employers to provide military leave to members of the armed forces. And other federal laws come with related requirements.
If your organization doesn’t employ many military employees, you may have never considered this category of leave before. But it’s worth thinking about. Members of the military are being called up more often, for reasons that range from shifting geopolitical tensions to compounding weather events. When a request for military leave comes your way, you want to be prepared.
In this article, we explore the ins and outs of USERRA, examine how it interacts with other laws, and discuss how your organization can better facilitate military leave.
Why USERRA Coverage Is Broader Than You Think
HR professionals are used to considering the coverage of different employment laws. The Family and Medical Leave Act (FMLA) applies to employers with at least 50 employees. The provisions of the Americans with Disabilities Act (ADA) kick in for workforces of 15 or more. The Pregnant Workers Fairness Act uses that same threshold.
When it comes to USERRA, there is no minimum number of workers. It covers virtually all employers and employees in the U.S. It prohibits employers — regardless of their size — from discriminating against past or present members of the uniformed service, or those who have applied for membership in the uniformed service. This means organizations cannot deny initial employment, reemployment, retention in employment, promotion, or any employment benefit because of military status.
USERRA protects any employee who is a member of the uniformed services. Its provisions aren’t reserved for full-time employees; part-time and probationary workers are also eligible for military leave.
Covered workers may serve in the Army, Navy, Marine Corps, Air Force, Coast Guard, and their Reserve components. Covered employees include those in the Army National Guard and Air National Guard, and the Commissioned Corps of the Public Health Service. The law also covers National Disaster Medical System employees when federally activated and any group designated by the President during a time of war or national emergency.
Covered types of service under USERRA are similarly broad. They include:
- Active duty and active duty for training
- Initial active duty for training
- Inactive duty training (such as weekend drills)
- Full-time National Guard duty under federal orders
- Funeral honors duty performed by National Guard or Reserve members
- Fitness examinations for any of the above types of service
What You’re Required to Do When an Employee Gives Notice
Now that we’ve discussed the basics of USERRA, let’s dig into how the law works.
Employees are required to give their employers advanced notice that they’re leaving their job for service-related reasons. They can give notice verbally or in writing. Employees can take leave without this notice when military necessity prevents it, or when it’s otherwise impossible or unreasonable.
Once an employee has given notice of their military leave, HR should approve the leave, document the notice, and begin tracking the leave against the employee’s five-year cumulative limit.
Unlike other leave certification processes, USERRA prohibits employers from asking for proof of military leave. They cannot require military orders as a condition of approving leave. Employers should simply approve the request.
Once HR approves the leave, the team should let the employee know their options regarding benefits during their time off. As a best practice, the employer should send the employee written confirmation of their leave. But this step is not required by law.
USERRA’s Notice Posting Requirement
Employers are required to inform employees of their rights, benefits, and obligations under USERRA. They can satisfy this requirement by hanging up the DOL’s official USERRA poster, mailing out a notice, or distributing it by email.
Pay, Benefits, and Pension Obligations During Military Leave
USERRA protects reemployment rights for employees who take a total of up to five years of military leave with one employer. It doesn’t require employers to pay employees during their time away. Many employers, however, voluntarily pay the employee a differential to make up the gap between military pay and their full pay.
Some states require organizations to provide paid military leave in certain circumstances. Illinois law, for instance, holds that private employers with more than 51 employees must provide paid leave for military funeral honors duty. Use AbsenceSoft’s Leave Law Lookup to find out whether your state has a military leave law on the books.
Leave Length Determines Health Insurance Continuation
USERRA instructs employers to handle health insurance based on the length of an employee’s leave.
- Leave of fewer than 31 days: When employees take short-term leave for a training or funeral, employers should continue the employee’s coverage as normal. They pay only their usual share of the premium.
- Leave of 31 days or more: When an employee’s leave is lengthier, the employee can choose to continue their health coverage for up to 24 months by paying the full cost of the plan, plus up to 2%.
- When the employee returns: Employers must restore an employee’s coverage immediately upon their return. They may not impose new waiting periods for conditions that existed before or during service.
Pension and Retirement Rules
For the purposes of retirement vesting and benefit growth, employees must be treated as if they were continuously employed throughout their military leave of absence. When an employee returns from leave:
- The employer must fund any pension contributions that should have been made during their time away.
- The employee may make up their own missed contributions over a period of up to three times the length of service, but within a five-year maximum.
- For plans that require employee contributions, employer contributions are due only after the employee makes up their own.
after the employee makes up their own.
Employers must remember that USERRA’s pension protections apply to both defined benefit and defined contribution retirement plans.
Sick Leave, Vacation, and More
USERRA’s requirements touch on other benefits, too. For instance, employers may not require employees to use accrued vacation or sick leave during military service, though employees may choose to use it voluntarily. Benefits tied to seniority, like additional vacation accrual, enhanced health coverage tiers, or pay step increases, must continue to accrue as if the employee had worked throughout their leave.
Digging into the Escalator Principle
We’re now going to tackle one of the most difficult and misunderstood aspects of USERRA: the escalator principle. Under USERRA, employees returning from military leave don’t resume the job they left. They return to the position they would have been in had they not taken time away.
This concept is known as the escalator principle. It’s as if USERRA puts employees on a career escalator during their time away. If that escalator elevated the employee through promotions, pay increases, or role changes, they are entitled to step off the escalator at the higher level.
There are various deadlines employees must meet when they return or apply for reinstatement. As with health insurance, these deadlines vary by an employee’s length of service:
- Fewer than 31 days: Report to the next scheduled shift after getting safely home — with at least 8 hours of rest.
- 31-180 days: Apply for reinstatement within 14 days of being released from service.
- More than 180 days: Apply for reinstatement within 90 days of being released from service.
- Service-connected injury or illness: Deadlines may be extended by up to two years for hospitalization or recovery. This two-year period may be further extended by the minimum additional time needed if a circumstance beyond the employee’s control makes reporting within two years impossible or unreasonable.
Likewise, the position an employee is entitled to return to depends on their length of service. Employers must always reemploy the employee promptly and in good faith.
For services of up to 90 days, employers must first place the employee in the position they would have had so long as they are qualified or can become qualified with reasonable efforts from their employer. If they cannot become qualified, they should be placed in the position they held at the time their service began, so long as they are qualified. If they cannot qualify for either position and their inability is not due to a service-connected disability, the employer is obligated to put them in the nearest available position they can perform, with full seniority.
For services longer than 91 days, the employer must reinstate the employee according to the escalator principle, assuming they are qualified or can become qualified. If the employee cannot qualify for the position, they should be placed in a position of comparable seniority, status, and pay.
For more detailed resources on military leave and other topics, check out AbsenceSoft’s Military Leave toolkit in the LeaveLab, a dynamic and supportive digital community of HR professionals.
Service-Related Disabilities at Work
When an employee returns from military leave, they may disclose a service-related disability. This should prompt employers to consider their obligations under two laws: USERRA and the ADA.
Both laws address workplace accommodations for employees with disabilities. But they apply in different ways. Below, we break down the biggest differences between USERRA and the ADA.
- Employer size: USERRA applies to all employers — no minimum size. The ADA applies only to employers with 15 or more employees.
- Level of effort: USERRA requires employers to put forth “reasonable efforts” to actively help the employee qualify for their position. The ADA requires employers to provide “reasonable accommodation” through a back-and-forth interactive process with the employee.
- Training obligation: USERRA may require the employer to fund retraining at no cost to the employee. The ADA imposes no equivalent retraining obligation.
- Who is covered: USERRA covers disabilities connected to or made worse by military service. The ADA covers any qualifying disability, regardless of how or when it occurred.
- Pre-existing conditions: USERRA covers conditions that were aggravated during service, even if they existed before. Under the ADA, standard reasonable accommodation analysis applies regardless of cause.
Similar Statutes, Separate Tracking
USERRA and the FMLA have a lot in common. They are both federal laws that protect employees’ jobs when they need time away from work. And they both have provisions that are related to military service. Despite these similarities, these statutes serve different purposes and operate under different rules.
HR professionals may encounter situations where these laws apply to the same employee at the same time. Because of this overlap, it’s important to understand where the laws intertwine and where they differ.
Consider the following example. Let’s say one of your employees, Doug, applies for FMLA leave after his wife is called to active military duty. He can take up to 12 weeks of FMLA leave to arrange childcare, handle financial or legal matters, or attend military ceremonies.
There’s nothing unusual about this situation. But here’s the twist: Doug is a member of the National Guard. During his wife’s deployment, he’s called to active duty to assist with hurricane relief for several weeks. Now, Doug is not only protected by the FMLA, but by USERRA as well.
In circumstances like Doug’s, leave under the FMLA and USERRA can run concurrently. But HR must track the leaves separately, as their protections apply independently.
Platforms built specifically for leave management help HR make sense of complicated situations like these. With manual tools, HR may try to simplify their processes and track an employee’s military leave under one statute. This approach may cause organizations to miss compliance obligations or fail to send out proper notices.
But with leave software, HR can easily track FMLA and USERRA entitlements separately and simultaneously, while also administering any accommodations the employee may need when they return to work. Technology ensures HR can administer multiple types of leave compliantly and efficiently.
State Laws + USERRA
While this article focuses on federal law, many states have their own military leave laws that provide additional rights or protections. State laws cannot reduce the protections USERRA provides, but they can go further. Some states provide additional leave protections for state-ordered Guard activations, for instance. Others provide extended job protection or impose different notice requirements.
Employers need to follow whichever standard is more protective for the employee. Use AbsenceSoft’s Leave Law Lookup to find out whether your state has a military leave law on the books.
With AbsenceSoft, HR Teams Can Stay USERRA-Compliant
Military leave can be confusing and unpredictable to administer. Multiple laws — including USERRA, FMLA, ADA, and state statutes — provide protections for military employees and impose requirements on HR. These provisions are frequently triggered without much notice, and they often overlap.
Managing military leave manually is a complicated mess. This approach leaves HR vulnerable to expensive compliance mistakes, as they’re more likely to let a case fall through the cracks, miss a deadline, or confuse provisions when they’re using tools like email and spreadsheets.
With a purpose-built leave platform like AbsenceSoft, HR can manage military leave with confidence. AbsenceSoft’s Compliance Engine tracks more than 200 federal and state leave laws, including USERRA and its state-specific counterparts. It also supports concurrent leave tracking and automates eligibility calculations and documentation tasks.
If you’d like to learn how AbsenceSoft can transform your team’s approach to military leave and other leaves of absence, schedule a time to speak with one of our CLMS-certified leave specialists today.
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Certain exceptions to the time-limit on reinstatement apply when an injury occurs or is aggravated during active duty. USERRA indicates an employer will need to consider reinstatement for a recovery period of up to two years. 38 U.S.C. § 4312(2)(A)
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No, reserve training is for as many times as called for training duties and does not count towards the 5 year limitation. 20 C.F.R. § 1002.103(a)(3)
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No. USERRA explicitly prohibits adverse employment actions, including termination, demotion, or reduction in benefits, based on an employee’s military service or obligations. This protection applies before, during, and after the leave. Employees are also protected from retaliation if they assert their rights under the statute. Employers who violate these protections can face significant legal exposure, including back pay, lost benefits, and liquidated damages. For organizations managing multiple types of leave simultaneously, a purpose-built platform like AbsenceSoft can help ensure that military employees’ protections are properly tracked and no case falls through the cracks.
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Employers should maintain thorough documentation throughout the military leave lifecycle, including the employee’s notice of service, approval records, benefits continuation decisions, and reinstatement details. Because USERRA leave can run concurrently with FMLA and may also trigger ADA obligations upon return, keeping these records organized and separate is critical. Relying on spreadsheets and email threads makes consistent, compliant documentation difficult, especially as caseloads grow. AbsenceSoft centralizes all case documentation in one system, supports concurrent leave tracking, and stores records in a way that makes audit preparation straightforward if your organization ever faces a DOL inquiry.