If you need a military-related absence, the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) requires your employer to grant you military leave to serve in the uniformed forces. Your employer may not discriminate or retaliate against you for taking military leave under USERRA. Some states have enacted military leave laws that are more generous than USERRA. Some may require leave only for certain types of military service or require leave only for employees called to active duty. There are states that require leave for training too.
“Uniformed services” under USERRA includes all types of military training and service, whether voluntary or involuntary, in peacetime or wartime. It arises most often in connection with Guard and Reserve military personnel, but it also applies to the active Armed Forces and servicemen for the National Disaster Medical System.
Under the federal Fair Labor Standards Act, you do not need to be paid for any workweek during which you are on temporary leave for military duty for the entire week. However, if you are an exempt employee who works any part of the workweek, you will need to be paid your full salary for the entire workweek. Your employer is allowed to offset your salary with the amount of military pay or allowances you receive.
Can You Get Your Job Back After Military Leave?
Generally, if you take a military leave under USERRA, you will be eligible for reemployment if:
- Your employer was given advance notice of your military obligation;
- You were away from the employer five years or less due to military obligations;
- You came back to work in a timely manner as defined by USERRA; and
- You haven’t been separated from uniformed services with a disqualifying discharge or anything other than honorable conditions.
- The amount of time you have to apply for reemployment varies depending on how much time you served in the military.
Your employer has several other obligations under USERRA. For example, your employer may not require you to use paid time off (PTO) benefits for the military leave. Also, although your employer is usually not required to pay you during that time, you are entitled to time off at full pay for specific kinds of active or inactive duty in the National Guard or as a Reserve of the Armed Forces.
FMLA Leave for Military Families
Military Family Leave provisions were added to the Family and Medical Leave Act in 2008. They offer unpaid but job-protected leave under two conditions that address the special needs of military families. The first is “qualifying exigency leave,” and the second is “military caregiver leave.”
Qualifying exigency leave can be taken for any of a number of listed exigencies arising out of the fact that a military family member is on active duty or call to active duty status. The listed exigencies address the most common challenges faced by military family members, such as arranging for alternative childcare or attending military-sponsored events. Military caregiver leave may be taken by eligible employees to take care of a covered service member that suffers a serious injury or illness.
The family member taking the leave must have worked for a covered employer for at least 12 months, for at least 1,250 hours during the prior 12-month period, and in a location where at least 50 employees are employed by the employer within 75 miles. Covered employers include public agencies and private sector employers with 50 or more employees. Leave based on the qualified exigency provision of the FMLA does not extend to family members of servicemen or servicewomen in the Regular Armed Forces.