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HR Glossary  /  Military Leave
Military Leave8 min read
Table of Contents:

What is Military Leave?

Military leave is a form of job-protected leave granted to employees who are members of the U.S. military. This type of leave allows service members to take time off from their civilian jobs for military training, active duty, or other service-related activities. The primary purpose of military leave is to ensure that individuals serving their country do not face penalties or job loss due to their military obligations.

Military leave can be either voluntary or involuntary, depending on the circumstances. Regardless of the nature of the leave, U.S. law mandates protections for employees, ensuring that their jobs, benefits, and seniority are preserved during their time of service.

Importance of Military Leave in the U.S.

Military service is a cornerstone of national defense, and the U.S. government recognizes the importance of supporting those who serve. The U.S. Department of Defense reports that more than 800,000 reservists and members of the National Guard are employed in civilian jobs. Ensuring that these service members can fulfill their military duties without jeopardizing their civilian careers is essential for both military readiness and workforce stability.

For employers, managing military leave is not only a legal obligation but also an opportunity to show support for the nation’s service members. Many companies develop military leave policies to demonstrate their commitment to veterans and reservists, enhancing employee loyalty and workplace morale.

Legal Context and Protections for Employees on Military Leave

The primary law governing military leave is the Uniformed Services Employment and Reemployment Rights Act (USERRA), enacted in 1994. USERRA establishes the rights of employees to take military leave without fear of losing their jobs or benefits and outlines the responsibilities of employers in providing protections during and after the leave period.

USERRA applies to all employers, regardless of size, and protects employees who serve in the U.S. armed forces, including the National Guard, Reserves, Public Health Service Commissioned Corps, and other uniformed services designated by the President during times of emergency or war.

Military leave refers to the authorized absence from civilian employment granted to individuals who serve in the U.S. military. Employees on military leave continue to have their jobs and benefits protected under federal law, regardless of whether their leave is for active duty, training, or other service-related commitments.

Military leave can apply to:

  • Reservists and National Guard members called to active duty or for training.
  • Active duty service members participating in required training or deployments.
  • Service members attending drills or fulfilling other military obligations.

Purpose and Common Scenarios

Military leave is primarily designed to ensure that individuals serving their country can do so without losing their civilian jobs or facing employment discrimination. Common scenarios where military leave applies include:

  • Active duty service: When service members are deployed or activated for national defense or emergency response.
  • Training: Regularly scheduled training for reservists or National Guard members, often referred to as "drills" or "annual training."
  • Emergency duty: Involuntary activation of service members during times of national emergency or disaster relief.

Difference Between Military Leave and Other Types of Leave

Military leave is distinct from other types of job-protected leave, such as Family and Medical Leave Act (FMLA) leave, personal leave, or vacation. Unlike FMLA, which typically applies to family or health-related absences, military leave is strictly for individuals fulfilling their service obligations. Additionally, military leave is often involuntary, while other forms of leave are more flexible or discretionary.

Legal Framework Governing Military Leave

Overview of USERRA (Uniformed Services Employment and Reemployment Rights Act)

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the primary law governing military leave in the U.S. USERRA ensures that employees who leave their jobs to serve in the military are able to return to their civilian positions without facing discrimination or loss of benefits.

Key provisions of USERRA include:

  • Reemployment rights: Service members have the right to return to their civilian jobs after completing military service, provided they meet certain eligibility criteria.
  • Protection from discrimination: Employers cannot discriminate against employees based on their military service obligations.
  • Job retention: Employers must hold the employee’s position for the duration of their military leave, and reemployment must occur with the same status, pay, and seniority.

Employee Rights Under USERRA

USERRA provides robust protections for employees on military leave, including:

  • Job protection: Employees on military leave must be reemployed in the same or similar position upon their return.
  • Healthcare benefits: Employees have the right to maintain healthcare coverage for themselves and their dependents during military leave, either through their employer’s plan or COBRA.
  • Retirement benefits: Employers must ensure that military leave does not disrupt retirement benefits or pension plans. Service time is credited toward retirement and seniority.

Employer Responsibilities During Military Leave

Under USERRA, employers must comply with several key responsibilities, including:

  • Reemployment obligations: Upon return from service, employees must be promptly reinstated in their previous position or a comparable one.
  • Documentation: Employers can request documentation of the employee’s military service, such as military orders or discharge papers, to verify eligibility for military leave and reemployment.
  • Preservation of benefits: Employers must maintain employee benefits such as healthcare and retirement plans during the leave period.

Employees who need to take military leave must notify their employers as soon as possible. While USERRA does not require written notice, it’s a best practice for employees to provide a copy of their military orders or official notification to their employer to document the request.

Types of Military Leave

There are several types of military leave, which can be voluntary or involuntary, depending on the nature of the service:

  • Short-term leave: Typically used for weekend drills or training exercises, lasting a few days.
  • Long-term leave: For extended periods of active duty or deployments lasting several months.
  • Voluntary leave: When service members volunteer for active duty or training.
  • Involuntary leave: When service members are called to duty by the government during national emergencies or wartime.

Employer Obligations for Maintaining Benefits During Leave

During military leave, employers must continue to provide benefits such as healthcare coverage, either directly or through COBRA, and ensure that the employee’s pension or retirement contributions remain intact. In addition, the employer must keep the employee’s job open for the duration of the leave and reemploy them upon their return.

Job Protection and Reemployment Rights

Employees on military leave are entitled to return to their jobs under USERRA’s reemployment rights. Upon return, the employee must be reinstated in their original position or a similar role with equal pay, status, and seniority. If the service period was longer than 180 days, employees must be reinstated within 90 days of requesting reemployment.

Retention of Benefits

Employees are entitled to retain several benefits during their time away on military leave, including:

  • Healthcare coverage: Employers must offer continued health insurance, either through COBRA or direct coverage.
  • Retirement and pension: Military service time counts toward retirement and pension benefits, and employers must ensure that employees don’t lose their pension eligibility during leave.

Protection from Discrimination Due to Military Service

USERRA prohibits any form of discrimination against employees based on their military service. This means employers cannot refuse to hire, promote, or reemploy an individual due to their past, present, or future military obligations.

Maintaining Employee Benefits

Employers must ensure that employees on military leave continue to receive their benefits, including healthcare coverage, pension contributions, and other seniority-related perks. If healthcare coverage is discontinued, the employee has the option of enrolling in COBRA to continue coverage for up to 24 months.

Proper Documentation and Record-Keeping

Employers can request documentation such as military orders or discharge papers to verify the employee’s military service. However, employers should also maintain detailed records of the leave period, including dates of leave and any benefits offered during this time.

Ensuring Smooth Reintegration of Returning Service Members

Employers must ensure that service members returning from military leave are reintegrated smoothly into their civilian jobs. This includes reorienting the employee, providing any necessary training, and ensuring they are up to speed with any changes that may have occurred during their absence.

Best Practices for Managing Military Leave

Creating a Clear Military Leave Policy

To avoid confusion, employers should create a clear and comprehensive military leave policy that outlines the procedures for requesting leave, the benefits available during leave, and the reemployment process. This policy should be easily accessible to employees and reviewed regularly to ensure compliance with federal laws.

Ensuring Compliance with Legal Obligations

Employers must stay compliant with federal regulations, particularly USERRA, to ensure that service members’ rights are upheld during and after their military leave. Employers should consult legal experts or HR specialists to ensure that their policies are up to date with current laws.

Supporting Employees Transitioning to and From Military Service

Military service can be a challenging transition for employees. Offering support through mentorship, reintegration programs, and flexible work arrangements can help returning service members readjust to civilian work life. Employers should foster a supportive environment that recognizes the contributions and sacrifices of military employees.

Differences Between Military Leave and FMLA, Personal Leave, or Unpaid Leave

Military leave differs from other forms of leave, such as FMLA or personal leave, in that it is directly tied to an employee’s military service obligations. FMLA is generally used for medical or family-related absences, while personal leave is often discretionary. Military leave is typically involuntary, and employees have specific reemployment rights under USERRA, unlike FMLA or personal leave.

Legal Distinctions and Overlaps

While FMLA and military leave are governed by separate laws, there may be overlaps in certain cases. For instance, an employee who qualifies for both FMLA and military leave may use FMLA leave to care for a family member injured in military service. Understanding the legal distinctions and potential overlaps is critical for employers when managing leave requests.

What benefits must employers maintain during military leave?

Employers must maintain healthcare coverage, pension contributions, and other seniority-related benefits for employees on military leave. This ensures that the employee returns to their job with their previous benefits intact.

Are part-time employees entitled to military leave under USERRA?

Yes. USERRA applies to all employees, including part-time workers, provided they meet the eligibility requirements for military leave. Employers must offer the same protections to part-time employees as they would for full-time employees.

Can an employee be terminated while on military leave?

Under USERRA, employees cannot be terminated while on military leave, nor can they be terminated upon their return, except in cases of misconduct or other justifiable reasons. Employers must adhere to strict guidelines to ensure that service members’ employment rights are not violated.

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