With an increasing number of workers in the uniformed services, employers need to be sure they are complying with all the requirements of military leave laws, including the Military Selective Service Act, the Veterans’ Reemployment Rights Act, and the Uniformed Services Employment and Reemployment Rights Act (USERRA). In addition, more and more states have recently implemented their own military service laws which focus on family military leave and leave for spouses of those who are deployed, facing deployment, or are home from deployment. The federal government has even added an amendment to the Family and Medical Leave Act (FMLA) to allow for family military leave. With all these changes, it’s important for employers to understand the ins and outs of the law.Military service laws are designed to protect members of the armed services from discrimination with regards to hiring, retention, promotion, or any other benefit of employment. These laws cover all private employers as well as federal, state, and local govern­ments and protect the rights of veterans, reservists, National Guard members, and certain other members of the uniformed services. In addition to anti-discrimination provisions, these laws guarantee that military service personnel are reinstated to the same (or equivalent) position held prior to their leave with the level of pay, seniority, and benefits the employee would have received if not on leave.

Below are some specific guidelines for understanding, and complying with, employee military service laws:

1. Advance notice. Employers have the right to request advance notice of military service unless conditions make it impossible for the employee to provide notice. Additionally, when the employee submits their intention to take leave, an approximate return to work date can be requested; however, employers may not insist on knowing exactly when the employee will return to work.
2. Scheduling. Guards and reservists may not be denied promo­tions or other benefits because of their reserve obligation, nor can they be disciplined for not being able to accept overtime requests due to their reserve training or duty. Employers should make an effort to reschedule these workers, if pos­sible, to avoid conflicts between work and reserve or Guard train­ing.
3. Vacation time. Employers may not require employees to use vacation time for military training, but employees can use accrued vacation or other paid leave benefits if they wish. It’s important to also consider vacation entitlement when the employee returns to work. This issue has been subject to confusing interpreta­tions by the courts. Generally, if vaca­tion entitlement is based on seniority, then military service should be counted; however, if vacation entitlement is based on specific work requirements such as the number of hours worked per week, military service may not nec­es­sarily be counted.
4. Pay. Employers are not required to pay employees who are on military leave, unless other state or local laws require payment to employees that are out serving military obligations. Although not required to do so, some employers decide to pay employees that are out on short periods of military leave. Those that do often pay only the difference between the employee’s regular salary and military pay, if any.
5. Benefits continuation. The law requires employers to offer those on military leave and their dependents con­tin­uance in the group health plan for up to 18 months of service. They may be required to pay 102% of the full group rate; those serving 31 days or less pay only the amount they would have paid if still employed. With regards to pension benefits, the law requires employers to make up contributions to defined contribution plans that may have been missed while the employee was on leave.

6. Length of absence. Military service personnel out on leave for up to five years will still retain their employment rights. This amount of time may actually be longer for initial obligation periods, in certain training situations, or if the indi­vidual served during a war or other crisis.
7. Reemployment. Reemployment is required after “satisfactory completion” of service; this does not include dishonorable or “bad conduct” discharges. Employers can deny reinstatement to qualified service personnel only if they can show undue hardship (e.g., conditions have changed so as to make reemployment impossible or unreasonable). Individuals requesting to be reinstated must do so within a specified period after completing service: those who served more than 180 days must do so within 90 days; those who served for 31-180 days must reapply within 14 days following the end of their service; and those serving 30 days or less must report to work at the start of the next shift.
8. Status. Individuals returning after service of no more than 90 days must be given the job they would have had if they had been continuously employed. Individuals who serve 91 days or more must be given the job they would have had if continuously employed or one of like status and pay. In either case this could result in being placed in a higher or lower level position (or even on layoff) depending upon what has transpired in the workplace during the leave. In addition, the period of military service for returning service personnel will count as part of their total seniority within the company for such benefits as pension eligibility, FMLA, and vacation time. Simi­larly, company or department-wide increases, improvements in insurance or other benefits, and all the other rights or benefits that would prob­ably have been derived from continued employment, must be provided to these workers upon their return.

With more employees in the military, employers need to start thinking about the implications to their business. These employees are guaranteed job protection, benefits coverage, and status retention during military service and upon their return.

State-specific laws may vary from federal military service laws, so it’s important to understand your state’s provisions on the issue. Check out the Military Service section of our State & Federal Labor Laws for more information on your state requirements.