The demands of military service often require individuals to step away from their civilian careers for periods ranging from a few days of annual training to years of mobilization. This necessity creates a conflict between serving the country and maintaining professional employment, requiring legal protections. Without clear guidelines, service members could face the loss of their jobs, seniority, or benefits upon returning from their obligations. The federal government established a framework to address this conflict, providing a predictable pathway for both the employee and the employer.
The Official Legal Framework
The federal law that governs job protection for those who serve is the Uniformed Services Employment and Reemployment Rights Act, commonly known as USERRA. This legislation establishes a set of rights and responsibilities surrounding uniformed service. USERRA is broad in its application, covering virtually every service member and every employer in the United States, regardless of the company’s size or the employee’s duration of service. The law ensures that employment is protected when a service member is away.
Defining Covered Military Service
USERRA protection extends to a wide array of duties, ensuring job security across various forms of uniformed service. The law encompasses both voluntary and involuntary service in any branch of the armed forces, including the National Guard and Reserves. Protection is tied to the nature of the duty, not the specific branch of service or the duration of the obligation.
Active Duty and Training
Standard active duty periods, such as deployments, mobilizations, or mandatory annual training, all fall under USERRA protection. These periods are often scheduled in advance, allowing for some preparation by both the service member and the employer. The protection also includes periods of voluntary training, provided the duty is authorized and the service member meets the necessary eligibility requirements.
Initial Active Duty for Training
New recruits beginning their military careers are also covered during their initial training phases. This includes basic training, also known as boot camp, and subsequent specialized training, such as Advanced Individual Training (AIT) or technical school. Since these training periods can last for several months, the law ensures that the new service member’s civilian job remains secure during this extended absence.
Required Fitness and Examinations
Protection is not limited to time spent in uniform performing military tasks, but also extends to necessary preparatory activities. This includes time off required for mandatory physical examinations to determine fitness for duty. Likewise, any required medical or dental examinations used to determine eligibility for or continuation of service are covered by the employment protections.
Funeral Honors Duty
Service members who are called upon to perform funeral honors for a deceased veteran are also protected under the provisions of USERRA. This type of duty, while often brief, is recognized as an official military obligation that requires time away from civilian employment. The law recognizes the significance of this service and ensures that the employee’s job status remains secure.
Duty with the National Disaster Medical System
The statute also specifically covers time spent performing duty with the National Disaster Medical System (NDMS) in connection with a public health emergency or disaster. This protection ensures that medical professionals who serve in the NDMS can respond to national emergencies without fear of losing their primary employment. The inclusion of NDMS duty highlights the law’s recognition of various forms of national service that require civilian leave.
Employee Rights While on Military Leave
The protections afforded to the employee remain in effect throughout the entire period of absence. A fundamental principle of USERRA is the preservation of seniority, known as the “escalator principle.” This means the service member must be treated as though they had never left the job, continuing to accrue seniority, promotions, raises, and benefits they would have earned had they been continuously employed. Employers must also allow the service member to continue their existing employer-sponsored health insurance coverage for up to 24 months. While the employee may be required to pay the full premium, this right ensures continuous medical coverage during the period of service. Furthermore, the service member has the right to be treated equally to other employees on comparable non-military leaves of absence regarding non-seniority benefits.
Rules for Reinstatement and Reemployment
The process of returning to the civilian job is governed by specific timelines and conditions based on the length of the service member’s absence.
Reemployment Timelines
For service of 1 to 30 days, the employee must report back to work by the start of the first full regularly scheduled shift following the completion of service and safe travel home.
If the service period was between 31 and 180 days, the service member must submit an application for reemployment no later than 14 days after the completion of their service.
For longer periods of service, specifically 181 days or more, the employee is given up to 90 days after service completion to apply for their job back.
Regardless of the duration, the employer is obligated to reemploy the individual in the position they would have attained had their employment not been interrupted by military service. This “escalator position” may be a promotion or an entirely different role. If the service member is not qualified for the escalator position after reasonable efforts by the employer to qualify them, they must be reemployed in a position of comparable status and pay. The employer can only deny reemployment in limited circumstances, such as if the service member’s cumulative period of absence exceeds five years of service. A service member who is disabled due to their military service is entitled to reemployment in a position that provides similar status and pay, provided they are qualified to perform the duties.
Handling Pay and Benefits
Regarding compensation, federal law does not require employers to pay an employee during military leave. Employers are required to allow the service member to voluntarily use any accrued paid leave, such as vacation time or paid time off (PTO), for the period of military service. The employer cannot mandate the use of accrued paid leave. A different standard applies to retirement plans, where the employer has a distinct obligation to ensure the service member is made whole upon their return. Once reemployed, the employer must make up any missed contributions to the employee’s defined contribution plan that would have been made during the period of service. The service member is also given a period of up to three times the length of their service, not to exceed five years, to make up any missed employee contributions to the plan.
State Law Additions and Exceptions
While USERRA establishes a high floor of protection, state laws and sometimes local ordinances can build upon these federal rights. State legislatures often enact laws that provide greater benefits than those mandated by the federal statute. These state-level additions can include requirements for differential pay, where the employer makes up the difference between the employee’s military pay and their previous civilian salary. Some states also extend the time limits for health insurance continuation or provide additional reemployment rights for members of state-level military forces. State laws can only add to the rights granted by USERRA; they can never diminish or reduce the protections already provided by the federal law.