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If an employee tells you they've been called to military duty, you may suddenly be facing questions most employers rarely encounter. For example, do you have to hold the employee's job? Is the leave paid? Can you ask for military orders? What happens to health insurance, seniority, and the employee's position when they return?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides important protections for service members who leave civilian employment for qualifying military service. But USERRA law isn't necessarily the only law that applies. State military leave laws, employment agreements, and workplace policies may create additional obligations.
Here's what you should know about managing USERRA military leave, from your employee's initial notice through benefits and reemployment.
USERRA is a federal law that protects the employment and reemployment rights of people who leave civilian employment to perform qualifying uniformed service. It applies to private employers and state and local governments, regardless of employer size.
This law prohibits discrimination based on past, present, or future military service or obligations, and prohibits retaliation against employees who exercise their USERRA rights, assist someone else in exercising those rights, or participate in a USERRA investigation. In addition, it establishes important leave-related benefits and reemployment protections for eligible service members.
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USERRA may cover both voluntary and involuntary service in the uniformed services. Depending on the circumstances, qualifying service can include active duty, active duty for training, inactive duty training, certain National Guard and Reserve service, fitness-for-service examinations, funeral honors duty and certain National Disaster Medical System service.
Since January 5, 2021, USERRA has covered certain National Guard service performed under state authority, including qualifying state active duty lasting 14 days or more when it supports a national emergency declared by the President or a major disaster declared under federal law.
Yes. USERRA establishes a federal baseline, but states may provide additional or more generous military leave protections. State laws can differ on paid military leave, National Guard activations, drills and annual training, PTO use, benefits, seniority, reemployment and post-return termination protections.
Some states also protect activities such as Civil Air Patrol or other emergency-service duties, and coverage and employer-size requirements can vary as well.
Employees generally must provide advance notice of military service, but USERRA doesn't require a particular form. Notice can be written or verbal and may come from the employee or an appropriate military official.
Employees should provide notice as far in advance as reasonably possible, but advance notice isn't required when military necessity prevents it or when providing notice is otherwise impossible or unreasonable. The Department of Defense recommends 30 days' advance notice when feasible, but USERRA doesn't impose a universal 30-day notice requirement.
A military leave policy for employers shouldn't require written orders in every case, since USERRA permits verbal notice and an employee may not be able to provide advance documentation.
Employers must notify employees of their rights, benefits, and obligations under USERRA. Posting the official "Your Rights Under USERRA" notice where other employee notices are customarily displayed can satisfy the federal notice requirement.
USERRA doesn't generally require private employers to continue an employee's regular wages during military service. However, military leave may be paid under state law, an employer's policy, a collective bargaining agreement, an employment contract or a differential-pay arrangement.
This law also requires employees on military leave to receive the most favorable non-seniority rights and benefits provided to employees on comparable nonmilitary leaves.
Generally, employees may choose to use accrued vacation, annual leave, or similar paid leave while performing military service, and you, as an employer, generally can't require them to use those balances solely because they're taking military leave.
An exception may apply during a company shutdown or another period when all employees are required to use vacation, and sick leave treatment depends on applicable law, policy, and how comparable absences are handled.
USERRA addresses several categories of employee benefits separately from wages and PTO.
For military service lasting fewer than 31 days, employees generally can't be required to pay more than their ordinary employee share of health plan premiums. For longer service, employees may elect continuation coverage for up to 24 months and may be required to pay up to 102% of the full premium.
The USERRA Act generally treats qualifying military service as continuous employment for pension participation, vesting, and benefit accrual purposes. Returning employees may be entitled to make up missed employee contributions, while you may have corresponding contribution obligations.
Seniority generally continues as though the employee had remained continuously employed, and this can affect seniority-based raises, vacation accrual rates, and other benefits.
Employees on military leave generally must receive the non-seniority rights and benefits provided to employees on comparable leaves. Depending on your policies and benefit plans, these may include life insurance, disability coverage, holiday treatment, bonuses, and other leave-related benefits.
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USERRA law generally uses a five-year cumulative service limit with a particular employer, but it's not a simple five-year maximum.
Certain types of service are excluded from the calculation, including required Reserve and National Guard training, certain involuntary activations, service during wars or national emergencies, some service needed to complete an initial period of obligated service, and other statutory exceptions.
Generally, to qualify for reemployment, an employee must have:
The deadline depends on how long the employee was away for military service. For service of fewer than 31 days, the employee generally must report back to work by the beginning of the first full regularly scheduled work period after returning home and having at least eight hours to rest.
For service lasting 31 to 180 days, the employee generally must apply for reemployment within 14 days after completing service. For service lasting more than 180 days, the deadline is generally 90 days.
Different timelines may apply when an employee is hospitalized or recovering from an injury or illness incurred or aggravated during military service. A late application also doesn't automatically eliminate all USERRA rights. Instead, the employee may become subject to the employer's ordinary rules concerning unexcused absences.
For service lasting more than 30 days, you may request documentation demonstrating that the employee's application was timely, that the applicable service limit was not exceeded, and that the employee's separation from service was not disqualifying.
A returning employee doesn't necessarily return to the exact position they held before military service.
The "escalator" principle generally requires the employee to receive the position they would have attained with reasonable certainty if employment had continued without the military absence.
For service lasting 90 days or less, USERRA generally prioritizes the escalator position, followed by the pre-service position if the employee can't qualify for the escalator position after reasonable employer efforts.
Yes, when reasonable efforts can help the employee qualify for the appropriate position, this may include refresher training, skill updates, or training on new equipment and systems.
Pay should reflect the proper reemployment position and the increases the employee would have received with reasonable certainty. Depending on the circumstances, this can include general wage increases, step increases, differentials, merit increases, and seniority-based increases.
USERRA requires reasonable efforts to help employees with service-incurred or service-aggravated disabilities qualify for the appropriate reemployment position.
If the employee can't qualify after reasonable efforts, you must consider alternative positions under USERRA's required hierarchy, generally seeking an equivalent position or the nearest reasonable approximation in seniority, status, and pay.
The ADA may provide additional protection when a returning service member has a qualifying disability and can perform essential job functions with or without reasonable accommodation.
You may not deny hiring, reemployment, retention, promotion, compensation, benefits or other employment opportunities because of an individual's past, present, or future military service or obligations. Retaliation for exercising USERRA rights or participating in an investigation is also prohibited.
Employees returning from more than 30 but fewer than 181 days of service generally receive 180 days of protection from discharge except for cause. For service exceeding 180 days, that protection generally lasts one year, with you bearing the burden of establishing cause during these protected periods.
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USERRA and the FMLA address different employment issues, but they can overlap.
When an employee is reemployed under USERRA, the employee generally receives credit for the months and hours they would have worked during military service when determining FMLA eligibility. Military service can therefore count toward the FMLA's 12-month employment and 1,250-hour requirements.
USERRA law generally protects an employee who leaves work to perform military service. FMLA military family leave, by contrast, may allow an eligible employee to take qualifying leave related to a covered military deployment or up to 26 workweeks of military caregiver leave for a covered service member with a serious injury or illness.
There are some common mistakes you'll want to avoid when it comes to USERRA.
USERRA notice may be verbal, and advance notice can be excused in certain circumstances.
Many common types of military service don't count toward the five-year cumulative limit.
USERRA doesn't establish universal wage continuation, but state law, comparable-leave requirements, or your policies may require pay.
Employees generally decide whether to use available vacation or similar paid leave during military service.
State law may protect additional service or provide more generous pay, benefits, or reemployment rights.
The appropriate position depends on what would have happened if the employee had remained continuously employed.
Unavailable military paperwork generally doesn't allow you to postpone an otherwise valid reemployment.
Health coverage, pension rights, seniority, and other benefits each require appropriate review.
State military leave laws, the ADA, FMLA, and your policies may create additional obligations.
Military leave can affect employee pay, benefits, seniority, reemployment rights, and protections under both federal and state law. Understanding USERRA employer obligations before your employee receives orders can help prevent costly mistakes.
Axcet's team of certified HR experts helps small and mid-sized businesses like yours understand USERRA law requirements, develop compliant leave policies, and manage employee leave as part of comprehensive PEO services. Contact us today to get help managing employee leave.
Written by
Grace Collins is a Human Resources Consultant at Axcet HR Solutions, where she partners with small and mid-sized businesses to create supportive, inclusive workplaces that empower teams and drive organizational success. With a passion for helping leaders solve complex HR challenges, Grace brings a strategic and people-centered approach to every client engagement.
She holds a Bachelor of Arts in Psychology with a minor in Business Administration from the University of Missouri-Columbia, where she graduated summa cum laude and was inducted into the prestigious Phi Beta Kappa Honor Society. Her academic focus and deep interest in multi-generational and multicultural workforce dynamics continue to shape her work in organizational leadership and talent development.
Before joining Axcet, Grace gained hands-on HR experience as a Human Resources Supervisor and Management Trainee at Providence Medical Center and Prime Healthcare, respectively. Her broad background includes recruiting, employee relations, and compliance in fast-paced environments.
Outside the office, Grace is the founder and creative force behind GC Photography LLC, a wedding and portrait photography business she has run since 2017. This creative outlet complements her professional life by enhancing her ability to connect authentically with people from all walks of life. Grace finds daily inspiration in the connections she makes—with clients, colleagues, and mentors—and is committed to continuous learning and professional growth.
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