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Mary M. Krakow

Mary M. Krakow Employment & Labor

mkrakow@fredlaw.com
612.492.7164
Printable Version

What an Employer Should Know About Military Leaves

By: MARY M. KRAKOW

April 2003

Many employers recently have experienced the military call-up of one or more of their employees. Still more employees may be called for military duty. Employers have and will continue to face questions regarding employees called to duty. The fundamental obligations of an employer when an employee is called to duty are outlined below.

1. Is an employee entitled to a leave of absence when called to duty?

An employer is obligated, under the federal "Uniformed Services Employment and Reemployment Rights Act" (USERRA), to allow an employee time off for service in the Armed Forces; the Army National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty; the commissioned corps of the Public Health Service; and any other service designated by the President in time of war or national emergency. The employer must allow a leave whether the employee's service is on a voluntary or involuntary basis.

Minnesota law requires an employer to allow an employee time off when called to active duty by the proper authority in any of the military or naval forces of the state or of the United States if leave would not otherwise be allowed by law ("state leaves").

2. What is the maximum length of the military leave?

USERRA provides for a cumulative leave of absence from employment for one employer of up to five years, including all previous absences due to military service. An employee's absence may extend beyond five years in certain instances.

Where the leave is provided under state law, employees may be absent for up to four years for active military service, with certain exceptions.

3. Is the leave paid or unpaid?

The leave under federal law is ordinarily unpaid unless the employer is obligated by agreement, policy or practice to pay an employee during all or a portion of the leave. In addition, the employee may use any vacation or other paid time off under an agreement, employer policies or practices during the leave. An employer may not, however, require the employee to use accumulated vacation or other paid time off during the leave. While not required to do so, employers may choose to pay the difference between the employee's regular compensation and the military pay for a period of time. State military leaves for employees are also generally unpaid.

4. Is an employee entitled to continue coverage under group health, life and/or dental plans in which the employee participates?

An employee who participates in group health, life and/or dental plans may continue coverage under such plans in accordance with COBRA. If the leave is for fewer than 31 days, the employee may only be required to pay the employee's usual share of the premium for coverage. If the leave is for 31 days or more, the employee can be required to pay the full cost of coverage. An employee must be reinstated to such plans upon return from military service.

5. How does military leave affect "seniority-based" benefits?

An employer is not required to make contributions to pension or 401(k) plans during military leave. Upon reinstatement, however, an employer must make up its contributions. The employee has three times the length of the amount of leave taken to make up his or her 401k contributions, at which time the employer must contribute its matching portion, if any. Time spent on military leave cannot be treated as a break in service and must count as continuous employment for determining vesting and accrual of retirement benefits.

Further, an employer must count the time spent on leave towards seniority and seniority-based benefits. For example, an employee's six months of military service must count as service for the employer where the employer's vacation policy bases vacation entitlement on years of service. An employer generally is not required to credit an employee for accrual of vacation or sick time during military leave unless the employer provides such credits to employees while on other types of leaves (e.g., while on any other paid or unpaid leave) or upon return from other types of leaves.

6. Must an employer reinstate the employee upon return from military leave?

The federal law requires the employer, with limited exceptions, to reinstate an employee when the military service has been completed. If the leave is for fewer than 91 days, the individual must be placed in the position the employee would have had if he/she had remained actively employed. Thus, for instance, if the individual would otherwise have been promoted during the period of leave, the individual is entitled to the promotion. If the leave is for more than 90 days, the individual, with limited exceptions, must be placed in the position the employee would have had if he/she had remained actively employed, or a position of like seniority, status and pay. If the individual would otherwise have been promoted during the period of leave, the individual is entitled to the promotion or a position of like seniority, status, and pay.

Under state law, the employer must, with limited exceptions, reinstate the employee to the position the employee held at the beginning of the leave, or to a position of like seniority, status and pay.

Special provisions apply under both federal and state law if, after reasonable efforts, the employee is not qualified to perform the position to which he or she has a right of reinstatement. USERRA includes different reinstatement terms for an employee who is injured during military service.

7. Is the employee required to provide the employer notice of intent to return to work upon completion of the military service?

The federal law provides that the employee who wishes to return to work after the completion of military service should do so in a timely fashion. If the service was for 30 days or less, the employee should, if possible, report for work on the first day of the next regularly scheduled work period following completion of military service, plus eight hours after a period allowing for safe transportation from the place of service to the employee's residence, or as soon as possible. For service of 31 to 180 days, the employee should, if possible, reapply to the employer not later than 14 days following completion of the military service. For service of 181 days or more, the employee should, if possible, reapply not later than 90 days following completion of military service. The federal law contains a number of exceptions to these time periods. An employer should not assume that an employee who fails to report or apply for reemployment within the prescribed time period forfeits rights to reemployment.

For state leaves, the employee should submit a job application within 90 days after termination of military service. The state law also contains a number of exceptions to this time period.

8. Are there any restrictions on terminating an employee who is reemployed upon completion of military service?

Federal law prohibits an employer from terminating an employee returning from military service except "for cause" for a defined period of time. If the military service was for a period of more than 30 days but less than 181 days, the employer is prohibited from terminating the individual except for cause for 180 days after reemployment. If the military service was for a period of more than 180 days, the employer is prohibited from terminating the individual except for cause for one year after reemployment. The "for cause" termination requirement may supersede any employer policy or individual employment agreement providing a lesser basis for termination during the applicable time period following return from leave.

For state leaves, an employer is prohibited from terminating an individual except for cause, after notice and a hearing, for one year following reemployment. Public employees who are veterans have additional employment protections that are generally applicable, whether or not they have recently returned from military service.


***The federal and state laws regarding military leave are very detailed and contain many exceptions and caveats that cannot be fully addressed in a summary. Employers are advised to seek guidance from legal counsel, in particular regarding the handling of benefits during military service and upon return from leave, and the reemployment rights of individuals returning from military service. Employers are also advised to seek legal counsel before terminating an individual who has, at any point during employment, taken military leave.