Military Service and Re-employment Rights
Created by FindLaw's team of legal writers and editors | Last reviewed June 20, 2016
America's military is relying more and more on reservists and other part-time service members -- those with civilian jobs as well -- 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 the service member, his or her family, and the employer. There are a number of legal protections for Reservists and Guard members called to active duty, to help ease that burden. Employers also need to understand their responsibilities when soldiers return to work in the civilian world, both for the sake of the service members and to avoid costly legal disputes.
While this article focuses on applicable laws and best practices for employers, military service members should read How do I Get Military Employment Protection? and Civilian Employment After the Military: What You Should Know for more information.
Re-Employment Rights: Returning Soldiers to Work
A major concern of those called to active military duty is getting their old jobs back once they return to civilian life, so employers should plan accordingly. An employee who is called to military duty is considered to be on an unpaid leave of absence. Federal law (the Uniformed Services Employment and Re-Employment Rights Act, or USERRA) provides that service members have the right to be re-employed in the job he or she would have if not for the active duty call-up (more on this important federal law below). When returning soldiers to work, employers must provide them with 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 his or her 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 eight-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 re-employment within 14 days of being released from service. If the absence due to military service has been longer than 180 days, re-application must be made within 90 days of the service member's release from duty.
The maximum absence that will allow a service member to retain re-employment rights is five years.
An employee who is absent for 30 days or less can continue his or her medical coverage, at the same cost, during the time of service. Service of more than 30 days will give the service member and his or her dependents coverage under the military health care plan.
An absence for military service is not to be considered by employers as a break in employment. A service member who returns to his or her former employer is entitled to re-enroll in the employer's medical or health insurance plan. No waiting period or period of exclusion may be imposed. A health plan sponsored by an employer is not, however, 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 Re-Employment Rights Act of 1994
USERRA, a federal law, is intended to minimize the disadvantages to an individual that occur when a service member needs to be absent from his or her civilian employment to serve in this country's uniformed services. USERRA makes major improvements in protecting service members' rights and benefits by clarifying the law and improving enforcement mechanisms. Specifically, USERRA expands the cumulative length of time that an individual may be absent from work for uniformed services duty and retain re-employment rights.
Who is Covered?
USERRA potentially covers every individual in the country who serves in or has served in the uniformed services, and applies to all employers in the public and private sectors, including federal employers. The law seeks to ensure that those who serve their country can retain their civilian employment and benefit, and can seek employment free from discrimination because of their service. USERRA provides enhanced protection for disabled veterans, requiring that employers make reasonable efforts to accommodate the disability. To learn more about your obligations as an employer under USERRA, visit the U.S. Department of Labor's interactive "USERRA Advisor."
Get Legal Help When Returning Soldiers to Work
If you are an employer with questions about military leave and your obligations to your employees under USERRA, contact an experienced employment law attorney in your area.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified business attorney to help you prevent and address human resources problems.