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What is Military Leave?

What is Military Leave?

Military leave may not be common in every industry and region, but U.S. employers and HR teams still need to know their obligations to employees who take time off under USERRA. Find out exactly what military leave is, how it works, and what HR needs to know in order to maintain compliance and protect military service members.

 

Defined: What is Military Leave?

Military leave is a type of employee leave granted to employees who are associated with a branch of the U.S. armed forces or National Guard and are called into duty.

There are a variety of regulations in place to protect service members in regard to their civilian employment, particularly concerning reemployment and continuing employer-provided health insurance coverage.

Similarly, the Veterans Employment and Training Service (VETS)—an agency within the Department of Labor (DOL)—is authorized to investigate issues relating to Uniformed Services Employment and Reemployment Rights Act (USERRA) and military leave.

 

What Protections Do Service Members Have When They Take Military Leave?

According to the USERRA, service members who are called into duty are guaranteed rights to be reemployed in their civilian job once they return from uniformed service if they meet the following criteria outlined by the DOL:

  • The person must have been absent from a civilian job because of service in the uniformed services
  • The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services unless the notice was precluded by military necessity or otherwise impossible or unreasonable 
  • The cumulative period of military service with that employer must not have exceeded five years
  • The person must not have been released from service under dishonorable or other punitive conditions
  • The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment unless timely reporting back or application was impossible or unreasonable.

In contrast with some other employment regulations, USERRA rules apply to every employer, regardless of its size or number of employees. This also includes both part-time and full-time status workers. 

Additionally, these individuals are guaranteed a right to be free from discrimination and retaliation for this service, and a right to continue their employer-provided health insurance for up to 24 months while serving in the military—including coverage for dependents. A full list of military leave employment rights can be found here.

 

Who is Entitled to Military Leave?

USERRA extends employment and reemployment rights to employees who have been absent from employment due to “service in the uniformed services.” 

Uniformed services include:

  • Army, Navy, Marine Corps, Air Force, and Coast Guard
  • Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, and Coast Guard Reserve
  • Army National Guard and Air National Guard
  • Commissioned Corps of the Public Health Service
  • Any other category designated by the President in time of war or emergency

 

Do Employers Have to Pay Employees on Military Leave?

It depends. According to SHRM, there’s no requirement under USERRA to pay a non-exempt employee who takes military leave. 

With this said, the Fair Labor Standards Act (FLSA) prohibits employers from reducing an exempt employee’s salary if they only work a partial week and need to leave for reasons related to military service. In other words, if an exempt employee works part of the workweek but is required to miss some time due to military service, the employer must pay the employee their entire weekly salary. 

It’s important to keep in mind that a lot of employers have company policies that are more generous than USERRA provisions, like granting paid military leave for employees who are service members, among other benefits to support their employees.

 

Military Leave Recordkeeping Responsibilities

Employers are required to post the “Know Your Rights Under USERRA” poster in the workplace or distribute it to employees in order to let them know their rights. Aside from this obligation, employers don’t have any other recordkeeping responsibilities related to military leave according to the DOL.

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