Hiring military members can be beneficial to your business. Service members are loyal and productive. They are intuitive decision makers and likely have leadership skills. They receive skills training from the military.
But, what happens when an employee must take time off for military service? You must follow the USERRA military leave policy.
What is the USERRA military leave policy?
USERRA is the Uniformed Services Employment and Reemployment Rights Act. USERRA protects the employment rights of people who are in the military service. The Act also prohibits employers from discriminating against past and current military members, as well as people who apply for military service.
USERRA is meant to help service members find and keep civilian jobs. All employers must follow the USERRA military leave policy. There is not a minimum amount of workers you must employ before you follow the Act.
You must display a poster about USERRA rights somewhere that is visible to your employees.
How long can employees take military leave?
The employment protections under USERRA allow for up to five cumulative years of military leave for employees. Employees can use this time for both training and extended military service. After five years, the military leave policy no longer applies to your relationship with that employee.
Every time a new employee gets a job with a new employer, the five-year limit starts over.
Leave of absence notice
Before an employee takes military leave, they must give you advance notice. The notice can be written or oral. The employee does not need to give you a copy of their military orders. There is not a particular amount of time before their leave that the employee must give you the notice.
When an employee gives you notice, you will then place your employee on military leave of absence. Once the employee returns from service, your employee is entitled to reemployment rights and other USERRA benefits.
If an employee does not give you advance notice of their absence, you do not have to follow the USERRA military leave policy.
What do I need to do while my employee is on military leave?
While an employee is on military leave, you must maintain their job status. An employee can accrue seniority, promotions, and pay raises while they are absent.
Your military leave policy must also allow your employee to maintain their health coverage if they elect to continue it. If you provide other benefits to other employees who are on non-military leave (e.g.; laid-off, jury duty), you must provide similar benefits to employees using military leave.
Do I have to employ them when they come back?
You must give a service member their job if they meet the following five criteria:
- They must have been absent from a civilian job to perform military service.
- They must have given you notice before leaving the job.
- They must not have exceeded five years of cumulative service while away from their civilian job.
- They cannot be dishonorably released from military service.
- They must report back to their civilian job within a timely manner.
You must give the service member the job they had before they took a military leave of absence. You must also give them any promotions and raises they would have earned if they never left.
If you filled the position, you will have to vacate it. The USERRA military leave policy entitles the service member to the position.
However, if you completely eliminated the employee’s position while they were away, you can reasonably deny reemployment.
You must promptly reemploy the service member. There is not a specific amount of time in which you must reemploy the employee. But, this time period tends to be two weeks or less from when they notify you of their return.
You cannot fire the returned service member, unless there is a legitimate cause. Service members are protected for either 180 days from the date of reemployment (following 31-180 days of service) or one year from the date of reemployment (following 181 days or more of service).
Reapplying for the job
To get their job back, the employee must notify you of their return in a timely manner. The time limit to report to you depends on the employee’s length of service:
- For service of 1 to 30 days, the employee must report back to you at the beginning of the first regularly scheduled work period on the next calendar day (after the employee completes
- necessary travel and eight hours of rest).
- For service of 31 to 180 days, the employee must submit an application for reemployment within 14 days of completing their service.
- For service of 181 or more days, the employee must submit an application for reemployment within 90 days of completing their service.
For employees who are recovering from an injury received during their service, they have two years to apply for reemployment.
You must accommodate your returned employee by providing them with refresher training plus any other necessary training.
If the employee received any service-related injuries, you must provide reasonable accommodation for the employee.
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