United States: 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 which an employee must request reinstatement. The time limits are based upon the duration of the military leave and are subject to extension if the employee incurs a military service connected disability. When a timely request for re-employment is made, the employer must (except as otherwise noted below) promptly reinstate the employee.

Although USERRA does not require employers to pay wages or salary to employees on military leave, Florida law provides for the continuation of full pay to public sector employees for the first 30 days of active duty military leave (and up to 17 working days of pay if the leave is for military training). Further, USERRA requires that employers offer an employee on military leave, and his or her dependents, the right to continue in the group health plan for up to 18 months following the commencement of military leave. This health insurance requirement applies regardless of whether the employer is covered by the Consolidated Omnibus Budget Reconciliation Act (COBRA). If the employee is on leave for less than 31 days, the employer must continue to provide insurance coverage as if the employee had remained working. Thus, during this period, the employer cannot require the employee to pay any more than the normal premium amount that he or she would have paid had they remained working. For leave periods in excess of 30 days, the employee can be required to pay 102% of the full premium for health insurance. In addition, absent a military service connected disability, an employer cannot impose exclusions or waiting periods upon employees when they return from military leave.

While on military leave, an employee is also entitled to the seniority and other rights and benefits determined by seniority he or she had attained as of the commencement of military leave, as well as any additional seniority and seniority-based rights and benefits that the employee would have attained if they had remained working. The employee is also entitled to non-seniority based rights and benefits to the extent such are provided to employees on non-military leaves of absence.

Because USERRA protects a covered employee’s job rights and benefits, an employer cannot force the employee to use accrued vacation time in conjunction with military leave. In addition, upon return from military leave, a reinstated employee must, for purposes of any pension plan, be treated as not having incurred a break in service. Thus, the employee does not have to re-qualify for participation in the pension plan, does not forfeit any benefits accrued under the plan, and can contribute to the plan any amount he or she would have contributed had they not been on military leave.

Under certain conditions, an employer may decline to reinstate an employee returning from military leave. Specifically, the employer can refuse reinstatement if: (1) the employer’s circumstances have changed so much as to make such re-employment impossible or unreasonable; (2) the employee suffered a military service connected disability and re-employment would cause an undue hardship on the employer; (3) the employment from which the person leaves is for a brief, non-recurrent period of time and there is no expectation that the employment will continue indefinitely; or (4) the employee’s discharge from military service was dishonorable or based on bad conduct. Additional employer rights arise where the employee fails to give reasonable notice of the desire to return to work.

The above is just an overview of some of the issues which may confront employers addressing employee requests for leaves of absence to perform military service. Employers are encouraged to consult with their labor counsel as particular issues arise. Failure to comply with USERRA can subject an employer to injunctive orders and the payment of lost wages and benefits, liquidated damages, prejudgment interest, attorney’s fees and costs. State statutes of limitations do not apply.