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USERRA: Employer Obligations to Members of the Uniformed Services, Guard & Reserves

Most employers acknowledge the valuable service the members of the U.S. Armed Forces and Reserves provide to this country. However, not all employers are aware of their obligations under the Uniformed Services Rights & Reemployment Rights Act (USERRA).

Generally, USERRA requires employers to reemploy individuals who, because of their service in the Uniformed Services, are absent from work. USERRA applies regardless of whether the military service is voluntary or involuntary.

Employer Obligations:

  • Do not discriminate against an employee based on past or present military service.
  • Grant a leave of absence for training or other military service, including a call to active duty to an employee.
  • The employer may not require (but may allow) an employee to use any paid time off/vacation benefits while on leave.
  • Extend the opportunity for the service member and his/her dependents to continue your group health insurance benefit for up to 24 months.
  • Prompt reinstatement (generally within two weeks of an employee’s timely notice that they intend to return to work)
  • Reinstatement must be to a job that they would have attained had they not been absent for military service. This includes seniority, status, and rate of pay the employee would ordinarily have attained (including prospects for future earnings and advancement) but for the military service.

Employee Obligations:

  • Notify the employer in advance when leave is needed. Generally, provide at least 30 days’ notice unless the need for leave is unforeseeable. However, they are not required to notify the employer in writing.
  • Apply for reinstatement in a timely manner as spelled out in USERRA.
  • If requested, provide proof of military service upon reinstatement.
  •  Ensure that separation from the Uniformed Services has not under other than honorable conditions.

There is typically a five-year service limit on the total amount of service in the Uniformed Services that an employee may perform and still retain reemployment rights. However, there are some exceptions such as service performed to fulfill periodic Guard and Reserve training requirements, involuntary active duty of a military retiree, involuntary active duty in wartime, etc.

For more information on your obligations as an employer, please visit:
Employer Support of the Guard and Reserves: https://www.esgr.mil/
U.S. Department of Labor E-Laws: https://webapps.dol.gov/elaws/userra.htm
Military.gov USERRA FAQs: https://www.military.com/benefits/military-legal-matters/userra/userra-frequently-asked-questions.html


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Disclaimer

EAF provides information about current developments in labor and employment law. This information is intended for educational purposes only and should not be considered legal advice. Questions requiring legal advice should be addressed to the attorney of your choice. EAF members may be able to obtain a legal interpretation through our FREE Legal Hotline.