Military Service and Re-employment Rights

America's military is relying more and more on reservists to accomplish its many missions. While these troops are proud to serve wherever they are called, there is no doubt that a lengthy tour of active duty, away from one's regular employment, can be a burden on both the soldier and their family. There are a number of legal protections for Reservists and Guard members called to active duty, to help ease that burden.

The Right to Re-Employment

A major concern of those called to active military duty is getting their old jobs back once they return to civilian life. An employee who is called to military duty is considered to be on an unpaid leave of absence. Federal law provides that you have the right to be re-employed in the job you would have if you had not been called to active duty (more on this important federal law below). You are entitled to the same salary and other benefits that come with seniority, although there are some limitations on this right to re-employment.

The Re-Application Process

A returning Guard member or Reservist who wants their old job back must reapply for the job. If the absence has been for less than 31 days, the employee must report for work at the beginning of the next regular work period on the first full day following release from duty, with time for travel home, and an 8-hour rest period.

If the absence has been for more than 31 but less than 181 days, the returning employee must submit an application for reemployment within fourteen days of being released from service. If the absence due to military service has been longer than 180 days, reapplication must be made within ninety days of the service member's release from duty. The maximum absence that will allow a service member to retain reemployment rights is five years.

Medical Insurance

An employee who is absent for thirty days or less can continue their medical coverage, at the same cost, during the time of service. Service of more than thirty days will give the service member and their dependents coverage under the military health care plan.

An absence for military service is not to be considered a break in your employment. A service member who returns to their former employment is entitled to re-enroll in the employer's medical or health insurance plan. No waiting period or period of exclusion may be imposed. However, a health plan sponsored by an employer is not required to provide coverage for injuries or illnesses caused or aggravated by military service (those injuries are generally covered by military health coverage).

The Uniformed Services Employment and Reemployment Rights Act of 1994

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) applies to employment after military service or military training. USERRA is intended to make it easier for service members to find and maintain meaningful employment after service.

Historically, military service members may have been taken out of the civilian workforce for a period of years and may have had difficulty re-integrating back into non-military employment. Under USERRA, returning service members have the right to be reemployed into the job at a level they would have had if they had not been away for service. This "escalator principle" is intended to provide the same level of seniority, status, and pay that they would have had if they were not serving.

The laws also protect reservists and National Guard members against reemployment discrimination. Individuals who are reservists in a military branch may be called to active duty, leaving their job behind for a period of months or years. USERRA provides job protections for up to 5 years for absence due to military duty.

Who is Covered Under USERRA?

There are five conditions for reemployment under USERRA. In order to qualify for USERRA reemployment rights, the individual must:

1. Apply for or have a civilian job;
2. Have given notice to the employer prior to leaving for military service or training;
3. Have not exceeded 5-years of cumulative periods of service;
4. Not have been dishonorably discharged; and
5. Report to the civilian job in a timely manner.

For more information about eligibility and servicemembers' rights under USERRA, see the U.S. Department of Labor's USERRA Advisor website.

Legal Help with Military Leave Issues

There is no question that being called to active duty is a hardship on both the service member and on their family. Federal laws that relate to reemployment and continuation of benefits can help ease some of that burden.

If you are a service member (or the loved one of a service member) with questions about military leave and your rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), contact an experienced employees rights attorney in your area.