Do I have to reinstate employees back from military leave?

An employer must allow an employee to report for military service and reinstate the employee to their former position if the employee requests reinstatement, in a timely manner, after their military service is completed.

The Uniformed Services Employment and Re-employment Rights Act (USERRA) governs the employment rights of veterans (38 U.S.C. 4301–4333). USERRA covers every individual who serves, or who has served, in the uniformed services and applies to any employer in the public or private sector.

USERRA provides that returning servicemembers must be re-employed in the job that they would have retained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority.

The period within which an employee must apply for reinstatement is based upon the length of military service. If the service was fewer than 31 days, the employee must return on the next regularly scheduled workday after release from service (taking into account travel time and a minimum of eight hours rest time). If the service was more than 30 days but fewer than 181 days, the employee must submit an application for re-employment within 14 days of release from service. For a service of more than 180 days, the employee must submit an application for re-employment within 90 days of release from service.

USERRA mandates that while an individual is performing military service, they're deemed to be on a furlough or leave of absence and are entitled to the rights accorded other employees on nonmilitary leaves of absence. Under USERRA, employees are allowed, but not required, to use accrued vacation or annual leave while performing military duty.

USERRA amends COBRA and allows employees performing military duty of more than 30 days to elect to continue employer-sponsored health insurance for as many as 24 months. For military service of fewer than 31 days, health insurance coverage is provided as if the employee had remained employed.

Read more about Military Service Leave in the HR Library.