Military Leave - What Employers Should Know

Co-written by Michael L Elkins Esq

In the wake of the tragedies that struck the United States on Tuesday, September 11, 2001, employers across the country are now faced with the prospect of employees leaving their positions to serve their country in the armed forces.

As employees begin to request time off in order to serve their country, it is important for employers to be aware of some general guidelines to follow when faced with issues concerning military leave.

As a general matter, military leave issues are controlled by the Uniformed Services Employment and Re-employment Rights Act (USERRA). Enacted in 1994, this relatively new federal statute provides the framework for employers to effectively and legally handle personnel who will be taking military leave. Essentially, an employee may take a maximum of five years for military leave. Upon returning from military leave, the employee must (subject to certain exceptions) be reinstated to his or her civilian job without loss of seniority or benefits and without any break in service for pension purposes.

It is important to remember that USERRA covers any person called into the "Uniformed Services." This means that persons in all five branches of military service, and the reserves of each branch, are covered. Additionally, persons in any commissioned corps of public health service or any other category of persons designated by the President in time of war or emergency are covered. In short, almost all forms of official military service are covered.

USERRA provides that an employer is entitled to receive advance notice of military leave, unless military necessity makes such notice impracticable or advance notice is otherwise impossible or unreasonable. The notice may be either written or oral. It is important to note, however, that an employer cannot require official military documentation until the employee has been on military leave more than 30 days. Although an employee's failure to provide advance notice when conditions permit could result in a denial of USERRA protection altogether, whether notice is timely is an open question under USERRA. In all probability, unless the circumstances can be deemed a blatant disregard of the advance notice requirement, the courts will most likely rule in favor of the employee.

Similarly, an employer is entitled to timely notice of an employee's intent to return to work following military leave. Specifically, USERRA provides certain time limits within...