What is the law on allowing employees time off for military leave?

Question:

What is the law on allowing employees time off for military leave? Does the employee have to show orders? How many times a year is the employee allowed off for military service? Does the employee have to give notice in advance and does it depend on policy?

Answer:

The law you are asking about is the Uniformed Services Employment and Reemployment Rights Act, or USERRA.  USERRA applies to virtually all employers, regardless of size, including the Federal Government.  Subject to specific rules and exceptions, USERRA guarantees an employee returning from military service or training the right to be reemployed at his or her former job (or as nearly comparable a job as possible) with the same benefits.

Generally, before departing for leave, USERRA requires an employee to provide their employer with advance notice of their military service, with certain exceptions. Notice may be either written or oral. It may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving.

However, no notice is required if:

• Military necessity prevents the giving of notice; or
• The giving of notice is otherwise impossible or unreasonable.

In this situation, “military necessity” is defined as “a mission, operation, exercise or requirement that is classified, or a pending or ongoing mission, operation, exercise or requirement that may be compromised or otherwise adversely affected by public knowledge.”

Similarly, USERRA does not require a service member to produce orders to his or her employer in advance of leave if doing so is precluded by military necessity, or otherwise impossible or unreasonable. The unavailability of orders on the front end of leave is one such example of “impossibility” that often plays out in reality and is not a basis for denying leave under USERRA.

As for the amount of leave available, USERRA does not focus on the number of “times a year” an employee is permitted to be on leave for military service.  Instead, USERRA reemployment rights apply if the cumulative length of service that causes an employee’s absences from a position does not exceed five years. Said another way, USERRA generally allows employees to take cumulative leave for up to five years.  While most types of service will be counted in the computation of the five-year period, there are eight categories of exempt service.

USERRA is a strict law, and it should not be taken lightly.  Thankfully, there is a tremendous amount of guidance available online. If you have additional questions, the Department of Labor has a helpful guide that you may find here: https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch3.