Military Leave from Work

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More than making a profit, employers must take care of their people. A successful business is a result of the collective effort of many employees. Part of upholding the welfare of employees is providing them with the necessary time off to attend to personal needs. Thus, companies have leave policies in place to accommodate requests for time off from work. While giving paid or unpaid leaves depend on the employer, this plays an essential part in what employees look for. One of the leave types that employees can request is military leave from work. What must employers do in this case? Let’s find out more about this in this article. 

What is “military leave from work”?

Military leave from work refers to a type of leave of absence that employees can take if they need to take part in any kind of military duty under the United State military, the National Guard, or Reserve of the Armed Forces. To put it simply, employers are required to grant employees leave from work to fulfill their military service. This includes active duty, training, and other duties. 

When employees need to request military leave from work, they must inform their employers either through writing or a verbal notice beforehand. The notice may be provided by the employees themselves or by the military. However, no notice is required if military necessity prevents giving a notification or if it is impossible. 

Military leave from work may be for a couple of days, weeks, months, or even a year. However, the cumulative duration of military service leave from their work may not exceed five years in total. 

I am a private company employer. Am I required to pay an employee who is on military leave? 

No, military leave from work is unpaid. You are not required to pay employees who are serving in the military. However, as an employer, you are responsible for re-employing the employee once they finish military duty and restore payment and benefits. 

Is there a law that relates to military leave from work? 

The Uniformed Services Employment and Reemployment Rights Act or USERRA is a law that guarantees employees who took military leave from work the right to be reinstated in their former job, or a comparable position, with applicable benefits once they return from military service.

USERRA applies to all employers no matter how big or how small their workforce is, including federal, state, and local government employers. It also applies to all full-time or part-time regular employees, regardless of the length of service to the company. Meaning, a regular employee can be employed for a few days and still be covered by USERRA. To be covered by USERRA, employees returning to work after their military service should have been honorably discharged from the military. 

Can employers use an employee’s annual vacation leave credits for military leave? 

It depends. If the employee requests to use their accrued vacation leave credits before their military service instead of unpaid leave, they can. However, employers cannot force employees to use their vacation time for military service. The employee must be the one to make the request. 

What will happen once the employee returns to work after military leave? 

Employers have specific responsibilities after an employee finishes their military service. To begin with, employees are legally entitled to be re-employed to their civilian employment if they choose to. 

Granting that the employee wishes to return to the same organization, the employer must then re-employ the returning employee in the job or position that they would have earned had they not been on military leave. Meaning, the employer must give the returning employee the wages, status, benefits, and seniority that they would have garnered if it were not for the military leave. It’s as if the employee did not go on leave. This is sometimes called the USERRA’s “escalator principle” which must be upheld by employers. 

For employers, keep in mind that the returning employee needs to be given all the support they need. After being on military duty, returning to work may not be a walk in the park. This is why employers need to provide necessary reorientation, training, guidance, and support to returning employees as if they were newly hired. 

In case that the employee is returning to work with a disability, employers must be prepared to accommodate the employee and comply with the Americans with Disabilities Act (ADA), the USERRA, and other laws on disability. 

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