December 14, 2017
If you have an employee who has requested a leave of absence from work to attend annual training, inactive duty training, or any other event ordered by the unit commander, you are required to grant the leave. That’s federal law under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994.
USERRA seeks to honor and protect the need of members of the Reserve components of the U.S. Armed Services from workplace discrimination — including firing, demotions, pay cuts, denial of promotion or generally expected bonuses or other benefits of employment — on the basis of their military status.
The law is sweeping in scope, and generally applicable to businesses of all sizes. Thanks to a 2011 amendment to the law, it’s possible for service members to sue their bosses if the employers create or tolerate a hostile workplace or an atmosphere of discrimination.
The Service Member’s Responsibility
If the mission requirements allow for it, the service member must request leave in advance. Depending on the situation, employers may sometimes get up to a year of advance notice. There’s no specific minimum time period, but the employee is generally expected to give the employer as much notice as practical.
However, if a state of emergency or some other circumstance prevents the advance notice, the service member is still protected against being penalized in any way for being absent for military duty.
Once employees return from military duty and request their jobs back, employers are generally required to reinstate the workers. After weekend drills or other short-term military events, the employee must attend his or her next regularly scheduled shift, allowing for travel time and an 8-hour rest period.
After longer absences, or if the employee has been taken off the schedule, the returning service member is required to request reemployment in a timely way.
The Elevator Principle
The “elevator principle” is an important compliance concept for employers to understand. Employees who are called away to extended military duty are generally entitled to receive all promotions and benefits they would’ve otherwise earned, had the absence not occurred.
The concept is this: The employee’s career elevator must not stop climbing just because he or she has been ordered to active duty. Employees who leave on military orders are entitled to get back on the metaphorical elevator at the same level they would have been at if they’d never left. Specifically:
- You must grant them all seniority-based promotions that would’ve occurred in the interim, which could also mean you’ll need to provide additional job training or retraining.
- For disabled service members, you must make reasonable accommodations to allow the employee to do the job, just as you would under the Americans with Disabilities Act. When that isn’t feasible, you must offer the employee a job that is a close equivalent to the job he or she would’ve qualified for if no leave had been taken, with full seniority benefits.
- There is no legal requirement to reinstate an individual to the specific job previously held by that person if the job itself has been eliminated altogether.
National Guard Members
USERRA protects all service members activated on federal orders. This includes National Guard annual training periods. To learn your requirements when the service member is on state active duty, check the laws of your state.
It may be possible for employers with concerns about an employee’s military service to work out an arrangement with the unit commander. If the service member is a key leader in the unit, however, there may be less flexibility.
More information about your responsibilities as the employer of a service member as well as the service member’s responsibility is available at this site: Employer Support of the Guard and Reserve (ESGR.org).