USERRA: What Employers Should Know

What Is USERRA and Which Employers Does It Cover?

Passed by Congress in 1994, USERRA provides expansive job protection and re-employment rights for employees serving in the uniformed services.

USERRA applies to all public and private employers regardless of size, which can come as a surprise to many small businesses. Employers may not realize that USERRA applies to them, even if they only have a few employees.

Who Is Eligible for USERRA Leave?

USERRA protects any employee absent from work due to “service in the uniformed services.” And USERRA defines “uniformed services” to include:

• Army, Navy, Air Force, Marine Corps, Coast Guard and Reserves.
• Army National Guard and Air National Guard.
• Commissioned corps of the Public Health Service.
• Any other category of people designated by the president in time of war or national emergency.

Uniformed service absences include:

• Active duty and active duty for training.
• Initial duty training.
• Inactive duty training.
• Full-time National Guard duty.
• Fitness for duty examinations.
• Absences for performing funeral honors duty.
• Duty performed by National Disaster Medical System employees.

Can Employers Treat Voluntary Military Service Differently Than Involuntary Service?

The short answer is no. One of the most common misconceptions employers have about USERRA is that the law only protects employees if they are “ordered” to military service. However, under USERRA, voluntary and involuntary duty are treated the same. It does not matter whether an employee” volunteered” for a tour of duty or was “ordered” to serve.

What is the Duration of Military Service Leave?

Under USERRA, employers must provide up to five years of leave for military service. This five-year limit is the cumulative length of all employment absences due to military service. Certain types of service cannot be counted toward the five-year limit, including:

• Time required to complete an initial period of obligated service.
• Time when an individual was unable to be released from military service through no fault of their own.
• Required drills and annual training.
• Service during time of war or national emergency.

Does an Employee Have to Provide Advance Notice of Leave?

USERRA requires all employees to provide advance written or verbal notice of the need for military leave, unless precluded by military necessity or if providing notice would be impossible or unreasonable. Employers should document any advance verbal or written notice of leave along with the anticipated leave dates.

Can An Employer Require an Employee to Provide Documentation Before Granting Leave?

Another common misconception that employers have about USERRA is that they can require an employee to provide their military orders before granting a military leave of absence. However, employers typically cannot require that employees provide written military orders or other official documentation before granting a military leave of absence.

Are Pay and Benefits Required During USERRA Leave?

USERRA leave is generally unpaid. However, if an employer offers its employees paid leave for a “comparable form of leave” — like jury duty — the employer must also extend that benefit to employees on USERRA leave. Employees may use vacation, paid time off (PTO) or other similar accrued leave during military service but cannot be required to do so.

For military service of 30 days or less, the employer must continue health benefits as if the employee had remained employed. For periods of military duty lasting more than 30 days, USERRA provides COBRA-like continuation benefits for up to 24 months. Upon reemployment, an employer must permit the employee and dependents to resume health coverage immediately without a waiting period or exclusion.

When Is an Employee Required to Report Back to Work After Leave Ends?

To qualify for USERRA protections, an employee must be able to return to work within certain time limits. These time limits depend on the length of military service as follows:

• For military service of less than 31 days or fitness for duty exam: Employee must return on the next working day (after allowance for safe travel home and 8 hours rest time).
• For military service between 31 and 180 days: Employee has 14 days after completion of service to contact the employer and request reemployment.
• For military service of more than 180 days: Employee has 90 days after completion of service to contact the employer and request reemployment.

These deadlines may be extended if the employee is recovering from an injury suffered during military service.

What Are the Rights of Employees Returning from Leave?

USERRA provides strong rights and protections for employees returning from military leave including:

• Prompt reemployment: Returning employees are entitled to prompt reemployment. Unless there are extenuating circumstances, “prompt” means reinstatement within two weeks of the employee applying to return to work. Prompt reemployment upon return from weekend National Guard duty will generally be the next scheduled working day. Prompt reemployment after several years of active duty may permit more time, when reassignment or notice must be given to another employee occupying the job. An employer cannot refuse to reemploy an individual to avoid terminating their replacement.
• Reemployment into the “escalator position”: Returning service members must be reemployed in the position that they would have attained if they had not left for military service (called the “escalator position”). If a returning service member is not qualified to perform this job, an employer must make reasonable efforts to train them to be qualified. If an employee cannot be qualified, the employee must be returned to their former position. In some cases, where the employee was absent for more than 90 days due to military service, the employer may choose to reassign the employee, but it must be to a position of like seniority, status or pay.
• Retention of all rights and benefits: Employees returning from military leave are entitled to all the rights and benefits they would have had if they had remained continuously employed.
• Protection from discharge: Returning service members also have special job protection against being discharged for six months to a year (depending on length of service) unless the discharge is for “cause.”
• Reasonable accommodation: Employers must also make reasonable efforts to accommodate a veteran’s disability, unless doing so would cause an “undue hardship.”

Can an Employer Require Documentation When an Employee Returns from Leave?

If an employee takes military service leave for more than 30 days and seeks reemployment, an employer can require documentation establishing that:

• The employee’s application for reemployment is timely;
• They have not exceeded the cumulative five years of service; and
• They have not lost their entitlement to protection under USERRA due to dishonorable discharge or other conditions.

An employee who takes military service leave for 30 days or less does not have to provide any documentation upon their return.

Are There Exceptions to Employee Reemployment Rights?

An employer is not required to reemploy an employee returning from military service if:

• Business circumstances have changed so much that reemployment is impossible or unreasonable.
• Retraining or accommodating a disabled individual would pose an undue hardship.
• Their employment prior to the leave was for a brief, non-recurrent period, with no reasonable expectation that employment would continue indefinitely or for a significant period.

Employer Best Practices

The Department of Labor (DOL) has helpful USERRA guidance and an online USERRA Advisor to help both employees and employers understand their rights and obligations under USERRA. Employers should also make sure they comply with these best practices:

• Comply with posting requirement: USERRA requires employers to post a notice that provides information on the rights of military service personnel to job reinstatement and other benefits. Employers should ensure they have the notice posted in their workplace. The USERRA notice is available from CalChamber as part of its California and Federal Employment Notices Poster and is available at the CalChamber store.
• Have a military leave policy: Employers should ensure that they have a military leave policy. The policy should cover the availability of military leave, procedures for notifying the employer about leave, pay and benefit issues and reemployment procedures. Use the Military Service Checklist to help create and implement a military leave policy.
• Address USERRA in anti-discrimination policies: Employers should not forget to address USERRA in their anti-discrimination policies and training. Service members must not be subject to discrimination or retaliation for taking protected military leave. Employers should be aware that improper comments about an employee’s military absence or frequent deployment could potentially lead to a claim of discrimination.