What is military leave?

Military leave is time away from a civilian job for service in the uniformed services. Under USERRA, the job is protected, and the deadlines for coming back depend on how long the person served.

In shortMilitary leave is governed mainly by the Uniformed Services Employment and Reemployment Rights Act (USERRA). It applies to employers of every size: the law defines an employer as any person or entity that pays salary or wages for work performed, with no minimum number of employees. An employee who leaves for service generally has reemployment rights if the cumulative length of service does not exceed five years, with exceptions, and they return on time. Health coverage can be continued during service for up to 24 months, or less in some cases. Many states add their own military leave rules, including for state National Guard duty.

When the employee has to come back

USERRA return deadlines (38 USC 4312(e)(1))
Length of service Return deadline
Less than 31 days The first full regularly scheduled work period on the first full calendar day after service ends, plus 8 hours after time for safe travel home
31 to 180 days Apply for reemployment within 14 days after service ends
More than 180 days Apply for reemployment within 90 days after service ends

Missing a deadline does not automatically end rights, but it can affect them under the employer’s normal rules for absences. Keep notes of every contact.

Return deadline by length of serviceUnder 31 daysNext shift31 to 180 daysApply in 14 daysOver 180 daysApply in 90 daysExample: 90 days of training, apply by June 12
The longer the service, the more time the employee has to come back.

Worked example: a 90-day training period

A reservist at a distribution center

A forklift operator in the Army Reserve tells his supervisor he has orders for 90 days of training starting March 1. Service ends May 29. Because his service is between 31 and 180 days, he has 14 days after it ends, until June 12, to apply to come back.

The company records the leave, keeps his position open and continues his health coverage at his request. He applies on June 3. He is reinstated on June 8, in the position he would have held if his employment had not been interrupted, which includes a pay increase his crew received in April.

The supervisor’s first instinct had been to fill the job permanently and offer him something else on his return. HR stopped that. Under USERRA, the starting point is the job he would have had, not whatever is open.

Mistakes that are specific to military leave

Planning for the absence and the return

Most military absences come with notice, which gives time to plan. When an employee shares orders or a training schedule, record the dates, agree how they will keep in touch, and set a reminder for the expected return. For drill weekends that repeat every month, add them to the schedule as approved leave months ahead so nobody builds a schedule around a person who will not be there.

On return, the starting point is the position the person would have held without the absence, including raises, seniority steps and training the team received. Keep a short return checklist: confirm the role and rate, update benefits, plan any refresher training on changed equipment or procedures, and record the reinstatement date.

Second example: monthly drill weekends

A supermarket cashier in the National Guard has drill one weekend a month, usually Saturday and Sunday. In the past, the schedule was built first and she had to find her own swaps each month.

The store manager now enters her drill dates for the year as approved leave in January, as soon as she has them. The schedule for those weekends is built without her from the start, and she never has to ask coworkers to cover. Her availability for other weekends is used as normal.

Calendar the return date the day you get noticeWhen an employee gives notice of service, calculate the return or application deadline from the expected end date and put it in the calendar with the job they would be returning to. It turns a stressful return into a planned one.

Questions people ask

Does USERRA apply to small employers?

Yes. The definition of employer has no minimum number of employees.

How long can an employee be on military leave?

Reemployment rights generally apply if cumulative service does not exceed five years, with several exceptions.

Is military leave paid?

USERRA does not require pay during service. Some employers and some state laws provide pay for part of it.

What happens to health insurance during military leave?

The employee can elect to continue employer health coverage for up to 24 months, or less in some cases.

Can an employer require notice before military leave?

Employees are generally expected to give advance notice of service unless military necessity prevents it or giving notice is otherwise impossible or unreasonable. Record the notice when it is given.

Does seniority continue during military leave?

Returning employees are generally entitled to the seniority and seniority-based benefits they would have had with continuous employment. Check how your plans and policies apply.

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Disclaimer: This explanation of military leave is general information, not legal, payroll or tax advice; rules differ by state and city and change over time, and the examples are fictional.