USERRA-Compliant Military Leave Policies for Employers

Why Employers Need a Clear Military Leave Policy

When an employee who serves in the military gives notice that they received orders to report for duty, federal law imposes specific obligations on the employer. Employers that adopt a military leave policy give HR a defined process to follow when orders arrive, including how to review leave orders and record the employee’s status in the HR system while the employee serves.

Employers can use military leave policies to set clear rules about wages during service, like whether they provide regular pay or differential pay, and direct managers on how to adjust schedules when employees leave for training or deployment and who approves coverage changes. The same policy can state whether a returning service member resumes the same job or a substantially similar one and how seniority applies after service. A written policy gives employers a concrete reference point if anyone challenges a military leave or reemployment decision.

Service Types Covered Under Federal Law

A military leave policy needs to tell managers when an employee qualifies for leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Qualifying service includes periods when an employee reports for active duty, periods of active duty for training or initial entry training, periods of inactive duty training tied to Reserve or National Guard obligations, periods of full-time National Guard duty performed under federal authority, periods required for fitness-for-service exams, and periods when a Guard or Reserve member performs funeral honors as assigned by the military.

USERRA as the Baseline for Military Leave Policies

USERRA is the central federal statute that governs military leave and reemployment rights for employees who serve in the uniformed services. Employers that base their military leave policies on USERRA give managers and HR clear direction on when service counts as protected leave and what obligations apply when a service member returns to civilian work.

Eligibility for Protected Military Leave

Protected military leave depends on whether the employee and the service period meet basic USERRA conditions. A military leave policy should state that an employee qualifies for protected leave and reemployment when the employee:

• Holds a civilian job with the employer when military orders arrive.

• Leaves that job to perform duty in a covered uniformed service and intends to return after that duty ends.

• Gives advance notice of service when the circumstances allow notice.

• Keeps total covered service with the employer within the general five-year limit in USERRA, not counting statutory exceptions.

• Receives a discharge or release from service that does not disqualify the employee from USERRA protection.

• Returns to work or applies for reemployment within the deadline that matches the length of service.

A military leave policy should direct HR to check each point before it marks a request as USERRA-protected leave.

Notice and Documentation for Military Leave

Federal law requires employees to provide advance notice of upcoming military duty when circumstances allow it. A military leave policy should direct employees to notify HR or a designated manager as soon as they receive orders and should list the accepted methods of notice.

A military leave policy should contain a notice and documentation provision, where employers instruct HR to open a record for each request and keep track of the notice date and start date, as well as the date the employee anticipates returning to work. HR should then send a written confirmation to the employee that states whether the leave qualifies. Confirmation should also clarify the service dates that appear in the employee’s record and direct the employee to the sections of the policy that describe pay, health coverage, retirement plans, and other benefits during military leave.

Pay During Military Leave

USERRA does not require employers to continue regular wages during military leave. A military leave policy should state whether the employer treats military leave as unpaid or provides some level of pay while the employee serves, which can include differential pay that covers the gap between military earnings and the employee’s usual base pay.

In this part of the policy, employers should explain how military leave interacts with existing paid time off programs. Employees may choose to use accrued paid leave during a period of military service, and HR should record that choice in the leave record. The policy should also make clear that managers and HR do not require employees to use accrued paid leave while they serve under military orders.

Benefits and Health Coverage During Military Leave

Federal law requires employers to treat covered employees on short military leave the same way they treat employees on other forms of leave when it comes to group health coverage. When a service period lasts fewer than thirty-one days, employers need to maintain the employee’s current plan and cannot require them to pay more than their regular share of the premium. Service that extends to thirty-one days or longer triggers continuation coverage obligations. Employers have to offer continued access to the group health plan for up to twentyfour months from the date military leave begins. During that continuation period, employers can charge the employee up to one hundred and two percent of the full premium, which covers the cost of the plan and a small administrative fee.

The benefits portion of a military leave policy needs to spell out the employee’s rights under USERRA on health coverage and required contributions during military leave. It should also identify the point when regular coverage ends and continuation coverage begins, how long continuation coverage remains available, and how HR and payroll calculate and collect employee contributions during each phase of military leave.

Reemployment After Military Leave

When an employee meets all prescribed reemployment conditions, USERRA requires employers to place that employee in the position the employee would hold if service had not interrupted civilian work or in a comparable role if the original position no longer exists. Employers also align seniority and base pay with credited service and assign a schedule that fits the employee’s pre-service status. If job duties changed during the absence, employers arrange training or refresher instruction so the employee can handle current responsibilities.

A reemployment provision should clearly state how managers and HR meet USERRA obligations by:

● Setting deadlines for employees to request reemployment after shorter training periods and after longer deployments, based on the length of military service;

● Explaining how managers select the correct reemployment position under the “would have held” standard and how they document that choice in the employee’s record;

● Directing HR to coordinate any training, accommodation, or temporary adjustment that helps the employee resume work after service, including situations that involve a service-connected injury or illness;

● Requiring HR to update seniority dates and pay level to reflect credited military service and to adjust any benefit that uses length of service as a factor.

Protection Against Discrimination and Retaliation

Federal law bars employers from taking adverse action against employees or applicants because they serve in the military or assert rights under USERRA. Adverse action means a job decision that harms an employee because of military service, rather than performance or conduct.

In this part of the policy, employers should prohibit managers from considering an employee’s military status or upcoming orders when making decisions about hiring, assignments, evaluations, promotions, discipline, or termination. The policy should also direct HR to document the stated reason for any adverse action that affects a service member so the record shows that the decision rested on legitimate business grounds.

Clear Reporting Channels for Employees

USERRA allows employees to bring questions or complaints about their military-related job rights to their employer or to the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) but does not require employers to set up an internal reporting channel. Employers that include an internal reporting channel in a military leave policy give employees a defined place to raise concerns about military leave or reemployment decisions, which provides employers with an opportunity to spot and correct problems before they turn into outside complaints or legal claims.

A reporting channel provision should name an HR contact point and instruct employees on how to submit military leave concerns in writing. The provision should then direct HR to log each report and review it within a set timeframe so employees see that the company treats USERRArelated concerns as a priority.

Keeping Military Leave Policies Current

USERRA sets the baseline for military leave rights, but agency guidance, court decisions, state military leave laws, and benefit terms change over time. Employers limit the risk of USERRA noncompliance and disputes over military leave decisions when they review the policy on a set schedule. During that review, employers can compare the text of the policy against USERRA and any state military leave law that might apply. They also confirm that the policy can operate alongside current health and retirement plan procedures.

Risks of Mishandling Military Leave

Employers who mishandle military leave expose themselves to USERRA claims for back pay and restoration of benefits. Employers may also face liquidated damages and an order to pay the filing employee’s attorney fees. Employees may file complaints with the U.S. Department of Labor’s Veterans’ Employment and Training Service, which can lead to a comprehensive government review of the employer’s military leave and reemployment practices.

A clear, current military leave policy that follows USERRA, that is followed consistently and supported by documentation, helps the employer show that disputed decisions came from a defined process instead of ad hoc judgments.

Legal Counsel for Military Leave Policies

Employers that want to draft or tighten military leave policies, or that face a dispute over a military leave or reemployment decision, can contact Conn Maciel Carey LLP’s national labor and employment practice group for USERRA-focused guidance. Conn Maciel Carey LLP works with HR teams and in-house counsel to bring the employer’s written military leave policy and HR documentation, including standard letters and forms, into line with USERRA and any state military leave laws that apply, and to confirm that the policy language matches current health and retirement plan terms. If an agency charge or lawsuit raises questions about past decisions, the firm helps the employer respond and then updates the employer’s policy text and template communications so future military leave requests follow clearer, more defensible rules.

Additional Reading

https://www.dol.gov/agencies/vets/programs/userra

This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.