New Military Leave Policy - During recruitment, you can bring in a new employee who is a member of the military. Some employees may already be registered or in the reserves when you hire them. Or, you can hire employees while working for your company. If an employee needs to take leave for military service, you must follow the USERRA military leave policy.
What does USERRA mean? USERRA is the Uniformed Services Employment and Reemployment Rights Act. USERRA protects the employment rights of individuals serving in the military and those applying for military service. The law also prohibits employers from discriminating against former and current members of the military.
New Military Leave Policy
USERRA is about helping service members find and keep civilian jobs. All employers must follow the USERRA military leave policy. There is no minimum number of employees you must employ before allowing employees to use military leave.
Paid Family Leave For Military Families
Display a USERRA rights poster somewhere your employees can see. Consider hanging the poster in the same location as your other labor law and wage posters.
Employment protections under USERRA allow employees to take up to five years of military leave cumulatively. Workers can use this time for training and extended military service. After five years, the military leave policy no longer applies to your relationship with that employee.
Leave covered by USERRA may be extended beyond five years if the employee meets one of eight exceptions. The five-year license limit includes eight exceptions:
For more information about exemptions from five-year military leave, contact the Department of Labor.
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Before an employee takes military leave, they must notify you in advance. The notice may be written or oral. The employee does not need to give you a copy of his military orders. There is no specific time before the employee must inform you of their vacation.
When an employee gives you notice, put them on military leave. Once the employee returns from work, your employee will have reinstatement rights and other USERRA benefits.
Generally, if an employee does not notify you in advance of their absence, you are not required to follow the USERRA military leave policy. However, there are two exceptions to the prior notice requirement.
While an employee is on military leave, you must maintain their employment status. Seniority, promotions and salary increases are available during an employee's absence.
Military Leave Policy
Your military leave policy should allow your employee to keep their health coverage if they choose to continue it. If you provide other benefits to other employees on civilian leave (eg, jury duty), you must provide the same benefits to employees on military leave.
You must give the service member the job they had before they took military leave. Also, give them the promotions and raises they would have earned if they had never left.
If you filled the position with someone else, you must vacate it for the returning service member. The USERRA military leave policy entitles the service member to the position.
However, if you completely eliminate the employee's position while they are away, you can reasonably refuse to rehire them. You don't have to offer them a new position in your business.
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If you retained the position at your business, rehire the service member immediately. There is no specific time to rehire the employee. But that period is two weeks or less from the date they notify you of their return.
You cannot fire a returned service member without a legitimate reason. Service members are protected for 180 days from the date of reinstatement (after 31-180 days of service) or one year from the date of reinstatement (after 181 days or more).
To get his job back, the employee must notify you of his return in time. The time period to declare depends on the length of the employee's military service:
Workers recovering from an injury sustained in the course of their employment have two years to apply for reinstatement.
Policies & Procedures
USERRA military leave is separate from leave under the Family and Medical Leave Act (FMLA). Under military FMLA leave, employees can take up to 12 weeks of unpaid, protected leave that applies to a family member who is a covered military member on covered active duty.
FMLA does not directly apply to service members. Instead, service members must use USERRA, and active duty military members can use FMLA for certain reasons.
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