Military Leave (USERRA)

Military leave is time away from work for service in the uniformed services, such as the Armed Forces, the National Guard when on duty, or the Public Health Service Commissioned Corps. In the United States, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the job of an employee who takes it.

USERRA is mainly about protecting the job. A returning service member generally gets back the position, seniority, and benefits they would have had if they had never left. HR teams should know the rules before the first set of orders arrives, because deadlines start running the day service ends.

Who Does USERRA Cover?

The law defines an employer as any person, institution, or organization that pays salary or wages for work performed. It sets no minimum number of employees, and it expressly includes federal and state governments. Small employers are covered the same way large ones are.

Protection also extends beyond the leave itself. An employer cannot deny hiring, promotion, or any benefit of employment because of military membership or service. It also cannot take action against someone for enforcing these rights or helping with an investigation.

What Notice Must an Employee Give?

Under 38 U.S.C. 4312, the employee, or an officer of the service, must give the employer advance written or verbal notice of the service. Notice is not required when military necessity prevents it or when giving it is impossible or unreasonable under the circumstances.

Accept verbal notice and write down what you received and when. Do not set up a rigid form requirement that a deploying employee cannot meet in time. A missed form is not a reason to deny reemployment rights.

When Must an Employee Be Reemployed?

Reemployment rights apply when three conditions are met: the employee gave advance notice, total service with that employer does not exceed five years, and the employee reports back or applies on time. Some service does not count toward the five years, such as extra time needed to finish an initial period of obligated service or certain required training.

If the employee is hospitalized or recovering from an injury or illness caused by service, the deadline moves to the end of recovery, which generally may not exceed two years. Missing a deadline does not automatically end the employee's rights, but normal conduct and absence rules can apply.

What Position and Seniority Does the Employee Return To?

For service of 90 days or less, the employee goes back to the job they would have held if they had stayed continuously employed, as long as they are qualified. For longer service, the employer can also use a position with like seniority, status, and pay.

This is called the escalator principle. The employee keeps the seniority they had when service began and also gets the additional seniority and benefits they would have earned while away. A raise or promotion that coworkers in the same group received can apply to them too.

After reemployment, the employee generally cannot be discharged except for cause. Protection lasts one year if the service ran more than 180 days, and 180 days if it ran more than 30 days but less than 181.

What Happens to Health Coverage and Vacation Balances?

An employee can elect to continue employer health coverage for up to 24 months from the date the absence begins, as set out in 38 U.S.C. 4317. The employer may charge up to 102 percent of the full premium. For service under 31 days, the charge cannot exceed the normal employee share.

When the employee returns, the plan cannot impose an exclusion or waiting period on reinstated coverage that would not have applied otherwise. The main exception covers illnesses or injuries that the Department of Veterans Affairs determines were caused or worsened by service.

On vacation, the employee may ask to use accrued vacation or similar leave during service, but you cannot require it. Leave the choice with the employee.

What Should a Military Leave Policy Include?

A written policy keeps managers from improvising when orders arrive. It should name one HR contact and cover the points below.

• Who to notify, how to give notice, and who records it
• What happens to pay, vacation, and other balances during service
• How employees elect, pay for, and restart health coverage
• Reporting and application deadlines for each length of service
• The HR owner who handles reemployment placement and seniority
• A reminder that exempt employees cannot have pay docked for temporary military leave, although military pay can offset that week's salary

Keep this policy next to your other time away rules, such as the leave of absence entry on FMLA and other job-protected leave.

How Does HR Cloud Fit Into Military Leave Tracking?

HR Cloud's time off tracking software lets you set custom leave types, each with its own policy, accrual schedule, and balance. It also supports approval chains, a shared team calendar, and an audit history of requests, approvals, denials, and balance adjustments.

The time off page does not list military leave as a built-in type or describe USERRA reemployment tracking. Notice records, reemployment deadlines, and health coverage elections stay with HR. A custom leave type with your own checklist is the practical way to cover it.

Discover how our HR solutions streamline onboarding, boost employee engagement, and simplify HR management

Book Your Free Demo

Frequently Asked Questions

Q: What is USERRA?

A: The Uniformed Services Employment and Reemployment Rights Act is a federal law that protects the civilian jobs of people who serve in the uniformed services, including reemployment, seniority, and benefits.

Q: Does USERRA apply to small employers?

A: Yes. The definition of employer sets no minimum number of employees and covers any entity that pays wages or controls employment opportunities.

Q: How long can an employee be away for service?

A: Total absence with one employer generally cannot exceed five years to keep reemployment rights, although some kinds of service do not count toward that limit.

Q: Do I have to pay an employee on military leave?

A: USERRA focuses on job protection. You cannot require the employee to use vacation, but pay beyond that depends on your own policy and any state law.

Q: Can I fire an employee after they return from service?

A: Only for cause. Protection lasts one year after reemployment if service ran more than 180 days, and 180 days if it ran more than 30 days but less than 181.

Q: Does the employee keep health insurance during service?

A: The employee can elect to continue coverage for up to 24 months and may be charged up to 102 percent of the full premium.