What Are My Responsibilities Under the Uniformed Services Employment and Reemployment Rights Act?

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) provides covered military service members with certain employment rights, such as leaves of absence, health benefits continuation, and reemployment. Here is some information to help you understand your requirements under USERRA.

Note: Several states have their own military leave laws and may offer greater protections for military service members. Check your state law for details.

Who does USERRA cover?

USERRA covers:

Virtually all employers (regardless of their size); and

Full-time, part-time, temporary and seasonal employees, provided they perform duty in the "uniformed services" of the United States (regardless of their hours worked and their length of time with their employer).

Note: Covered service members include those performing duty in the Air Force, Army, Coast Guard, Marine Corps, and Navy (and the reserve components of each of these services). It also includes the Space Force, Commissioned Corps of the Public Health Service, Federal Emergency Management Agency (FEMA) reservists deployed to major disaster sites, and other categories designated by the President during a national emergency or a time of war.

Additionally, "Uniformed service" includes:

- Active duty, active duty for training, inactive duty training (such as drills), initial active duty training;
- Funeral honors duty performed by National Guard and reserve members; and
- The period for which an individual is absent from a position of employment for an examination to determine fitness to perform their duty.

What are the USERRA leave of absence requirements?

Under USERRA, an employee is generally entitled to up to five years of cumulative military leave (per employer) for voluntary or involuntary active military service.

In certain situations, such as call-ups during emergencies, reserve drills, and annually scheduled active duty, USERRA-protected leave does not count toward the five-year limit.

What are employers' USERRA pay requirements?

USERRA leave is typically unpaid; however, employers should note that:

A service member may be entitled to pay in certain circumstances in which an employer offers paid leave for non-military-related absences; and
The federal Fair Labor Standards Act requires an employer to pay an exempt employee on military leave their full salary for each week in which the employee performs any work. Note: An employer may offset an amount an employee receives as military pay while that employee is on temporary military service. USERRA prohibits employers from requiring a covered employee to use paid leave during their military leave (although an employee may elect to use such paid time off).

What should employers know about pay differentials?

A pay differential under USERRA is the difference between military pay earned and what an employee would have received if they continued working for their employer.

Employers are not required to provide a pay differential. However, employers that voluntarily elect to provide a pay differential for military leave should note that the payments may be subject to certain taxes. Consult your tax advisor for details on taxes and potential exemptions under the Federal Insurance Contributions Act (FICA) and the Federal Unemployment Act taxes (FUTA).

Are employers required to continue a service member's health benefits?

For USERRA leave of:

30 or fewer days: An employer must provide health coverage as if the individual had remained employed.
More than 30 days: An individual is entitled to an opportunity to elect the continuation of health care coverage for up to 24 months (under the Consolidated Omnibus Budget Reconciliation Act (COBRA)).

What are the USERRA reemployment requirements?

An employer must reemploy a service member returning from a period of service, provided the service member:

Was absent from a civilian job due to service in the uniformed services
Gave advance notice to the employer that they were leaving the job for service in the uniformed services, unless the notice was precluded by military necessity or otherwise impossible or unreasonable. The notice may be provided in writing or orally, either by the employee or an appropriate officer of the military service
Has a total period of military service with their employer that does not exceed five years
Was not released under dishonorable or other punitive conditions
Reported back to the civilian job in a timely manner or submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable

Note: A service member's length of military service determines the time limits for reporting back to work or reapplying for their position (with certain exceptions for injuries) as follows:

- 1 to 30 days: A covered individual must report back to work by the first regularly scheduled work period that begins on the next calendar day (after allowance for safe travel home from the military duty location and an 8-hour rest period)
- 31 to 180 days: An individual must reapply within 14 days
- 181 days: An individual must reapply within 90 days

Generally, when a leave is less than 91 days, a covered employee must be restored to the position they would have attained if their employment had not been interrupted by military service (an escalator position).

For a leave of 91 or more days, an employer may reemploy the service member in the escalator position or to a position of like seniority, status, and pay that they would ordinarily have attained if continuously employed.

An employer must also provide:

Necessary training or retraining, as an employee may need additional time for missed skills training and opportunities missed during their service;
Reasonable accommodations for service-connected disabilities; and
Placement in a comparable position when an escalator position is not possible.

What nondiscrimination and nonretaliation protections exist under USERRA?

USERRA prohibits employers from discriminating against an applicant or employee due to the individual's past, present or future membership in the uniformed services. As a best practice, avoid questions about an applicant's military obligations on application forms and in interviews. If an applicant voluntarily discloses military service, such as on their resume, you may ask questions regarding relevant job-related skills acquired during their service.

An employer also cannot terminate a reinstated service member (unless it is a for-cause termination) during special protection periods that are determined by a worker's military service period as follows:

A service period of 31 to 180 days: 180 days of special protection
A service period of 181 days or more: One year of special protection

Note: An employer must prove an employee is terminated for cause, provided the termination is reasonable, and the employee had notice that their actions would result in termination (such as misconduct).

What are the USERRA poster requirements?

An employer with individuals covered under USERRA must post the "Your Rights Under USERRA" notice where employer notices are customarily placed, or they may mail it or distribute it via email.