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5 Military Leave Laws Every Employer Should Know

By Aditi Mukherji, JD | Last updated on

Memorial Day is a time to remember those who served. It's also a good time to remember your duty, as an employer, to employees who currently serve in our armed forces.

Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which applies to all employers, business owners can't discriminate against employees in hiring, retention, promotion or employment benefits based on past, present or future membership in the armed services (or other "uniformed services"). At its core, USERRA is a military leave law.

Here are five USERRA military leave laws every employer should know:

  1. Seniority status. When a military service member returns to civilian work, the employer must count the employee's military leave toward seniority status. The service member is entitled to increased pay, promotions, benefits, and pension vesting as if he'd been continuously employed at your business.
  2. Training. If the employee is not qualified for the reinstatement position, the employer must make "reasonable efforts" to qualify the employee through training programs and other means.
  3. Termination. An employer can't discharge an employee after he returns from military leave without cause. The law prohibits an employer from discharging an employee for 180 days (if service was for 31 to 180 days), or for one year (if service exceeded 180 days).
  4. Health insurance coverage. A person who is on military leave is entitled to elect to continue coverage for himself or herself, and for the person's dependents, under the company's health plan, up to a maximum of 18 months. This is true regardless of whether or not the company is subject to COBRA. When the service member returns from duty, the employer must offer immediate reinstatement of health insurance coverage. The employer can't impose a waiting period on health insurance coverage for the employee and the previously covered dependents of the employee.
  5. Re-employment exceptions. There are exceptions to USERRA if the employer's circumstances have changed in a way that makes re-employment impossible or unreasonable, or if such re-employment would impose an undue hardship on the employer. The employer may also be off the hook if the employment of the service member prior to service was brief, and there was no reasonable expectation that employment would continue for a long time.

Essentially, under USERRA, employers are not obligated to compensate employees during the period of military leave. However, employees on military leave are entitled to the same benefits that are provided to employees who take other forms of leave.

A final note: Be aware that state employment laws may also affect an employer's duties regarding employee military leave. That's why it may be wise to consult an experienced employment lawyer in your state if you have any questions about a specific situation.

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