Military Leave (USERRA)

Federal law guarantees the job rights of employees called to military service — with reemployment rights, benefits continuation, and anti-discrimination protections that many service members don't know they have.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the federal law that protects the employment rights of workers who leave civilian jobs for military service — active duty, National Guard, Reserve training, or voluntary military service. The core protection is reemployment: after completing military service, eligible employees have the right to return to their civilian job (or a comparable one), restored to the seniority, status, pay, and benefits they would have had if they had never left. USERRA applies to virtually all private and public employers regardless of size, and covers all branches of the uniformed services including the Army, Navy, Air Force, Marines, Coast Guard, Public Health Service, and National Guard.

USERRA's protections are broad and often underused because service members don't know them. Key rights include: the right to return to your job after service up to 5 years (with limited exceptions for multi-year extended service), restoration of seniority and pension benefits as if the absence never occurred, the right to continue health insurance for up to 24 months during service (though the service member may pay up to 102% of the full premium), and protection against discrimination or retaliation for military service. For pension and retirement plans, service periods must be credited as continuous employment — meaning years of military service count toward vesting and benefit accrual as if the employee never left.

Employers cannot require advance notice as a condition of USERRA protection, though it's good practice to provide as much notice as practicable. The service member must return within specific timeframes after completing service (generally 8–90 days depending on the length of service) and must not have been dishonarably discharged. Upon return, the employer must restore the returning service member promptly — delays or demotion to lesser roles violate USERRA. The Department of Labor's Veterans' Employment and Training Service (VETS) administers USERRA complaints, and employees can also pursue private lawsuits. Importantly, there's no statute of limitations specified in USERRA for enforcement actions.

Key USERRA Rights at a Glance

  • Reemployment: after service (up to 5 cumulative years), you must be restored to your pre-service position or a comparable one with equivalent seniority, status, pay, and benefits.
  • Seniority and benefits: the service period counts as if you were continuously employed — pension vesting, promotions that would have occurred, and pay increases during the absence must be credited on return.
  • Health insurance continuation: you may elect to continue employer health coverage for up to 24 months during service, at up to 102% of the full premium. On return, preexisting conditions must be covered without waiting periods.
  • No discrimination: employers cannot deny a job, promotion, or benefit because of military status or obligations. Retaliation against employees who assert USERRA rights is prohibited.
  • Notice: provide notice to your employer before departure when possible — written or verbal, as far in advance as is reasonable. Notice isn't always possible in emergency activations; USERRA still protects you.
  • Return deadlines: 1–30 days of service = return next scheduled work day; 31–180 days = return within 14 days; 181+ days = return within 90 days of separation from service.

Pay During Military Leave

USERRA does not require employers to pay employees during military service — it only requires job protection and benefits continuation. However, many employers do provide supplemental pay during military leave — covering the difference between military pay and the employee's civilian salary, so service members don't suffer a pay cut for serving. This is particularly common in large companies with stated commitments to veteran employees. For employees called to service who face a military pay shortfall, it's worth asking HR whether the company has a supplemental military pay policy, even if it isn't prominently stated. Some employers also allow service members to use accrued PTO during military leave to maintain income, though they cannot require it.

Example

A National Guard member is activated for 9 months of federal service. Before departing, she notifies HR in writing and asks about supplemental pay — her company provides salary differential pay for up to 6 months. She elects to continue her health insurance under USERRA. Upon return, she's restored to her same position with the pay increase that took effect during her absence applied retroactively, and her pension vesting continues uninterrupted as if she had never left. Her manager asks her to start on a new project team rather than her previous team; she requests in writing to return to her original team, noting this is a USERRA reemployment right — and is restored to it.