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Military
Leave
We have a new employee who has requested time off to enlist in the military. Do we
have to keep his job open? What other rights does he have?
Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA),
you must give your new employee a military leave of absence of up to five years. All
employees are eligible for this military leave; the law does not specify any employment
period for eligibility. In addition, you ordinarily must reinstate the veteran to the
position he would have held if his employment had not been interrupted by military
service. Employees who take a military leave of absence also are entitled to: (1) retain
and accrue benefits tied to seniority; (2) elect and pay for continued health care
coverage; and (3) participate during the leave in insurance and other benefits not
determined by seniority to the same extent as employees granted other types of leave.
In order to be eligible for reinstatement, the returning veteran must notify the
pre-service employer that he intends to return to employment once military service is
completed. The length of time that the veteran has to contact the employer regarding
reemployment depends on the length of the service. For example, if the employee’s
military service lasts for more than 180 days, the returning veteran must apply for
reemployment within 90 days of the end of the service. However, if he serves 30 days or
less, the returning veteran must report on the first full regularly scheduled work period
on the first full calendar day following completion of the service plus eight hours.
The USERRA also protects returning veterans from discharge without cause for a period
of time after reemployment. For example, if the returning veteran’s military service
lasted between 31 and 180 days, the veteran may not be terminated without cause for 180
days after the date of reemployment. If the veteran’s service was more than 180 days,
this protection applies for one year after reemployment. Employees with less than 31 days
of service do not have protection against discharge without cause, but like other
returning veterans, they are protected from discrimination based on military service or a
continuing service obligation.
For more information on Military Leave, see Leaves of Absence, Chapter 703, page
703:25, note 32; page 703:26, note 33; page 703:31, note 37; and pate 703:38, note 41.
This article is not intended as legal advice. Readers are encouraged to seek
appropriate legal or other professional advice.
For more articles please click here.
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