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- 27 Feb 2023Zenefits Review
The Military Leave from Work is a leave of absence authorized for employees called to active or inactive duty(s) in the U.S. military, including the U.S. Armed Forces, Reserves, and National Guard.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 was purposed to ensure the following:
Uniformed service is made up of active duty, active duty for training, inactive duty training, initial active duty training, and funeral honors duty (performed by the National Guard and Reserve members), including the duration for which an employee is called for a pre-induction examination to determine fitness to perform any such duty.
The services that fall under uniformed services include and are not limited to active/inactive duty training and initial active and funeral honors duty. It also consists of the time individuals are selected for pre-induction examinations and physical fitness assessments.
For private employers, state law generally requires unpaid leave. Though various states have different laws for government employers, including providing paid military leave, there are some general criteria and restrictions, such as :
The Act applies to persons who perform voluntarily or involuntarily duty in the "uniformed services" - including the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA.
This Act applies to any individual that has done duty in any form of "uniformed services" like the Army, Navy, or Air Force, whether voluntarily or not. Those under USERRA also receive rights for performing federal activities like training or service.
There are specific criteria to be eligible for leave under USERRA, which are as follows:
Exempt workers are not permitted to have their pay decreased under the Fair Labor Standards Act (FLSA) for partial-week absences caused by temporary military leave. Employers must pay exempt workers their full weekly wages as if they had worked the whole week, even if they only participated in part of the workweek due to military obligations. When an exempt employee misses the entirety of a workweek and does not work during that time, there is no legal need to pay them.
To keep receiving both civilian and military pay, an employee can decide not to take military leave and use a yearly break, compensatory time off for travel, or sick leave, as necessary. Employers are never allowed to compel workers to use their paid leave off for military service, but they do have to comply if a worker asks to utilize it.
A military member must be available to return to work within specific time frames to be eligible for USERRA's rights. Except for fitness-for-service tests, these time restrictions for returning to work are determined by how long a person served in the military.
The individual must report to their employer by the start of the first routine work period that starts on the day after service of 1 to 30 Days is complete. The deadline for reporting back to work for an employee who will use their Military Leave of Absence for taking a Fitness-for-Service Examination is the same as anyone who will have Military Leave of Absence from work for 1 to 30 days.
For an employee with military service of 31 to 180 days, the employer must receive an application from the employee for reemployment within 14 days of a person's service being completed. If submitting a timely application is difficult or unreasonable for whatever reason, the application must be filed as soon as possible the next day, once it is possible to do so.
The applicant must apply for reemployment to the employer no later than 90 days following the completion of the employee's military duty if the employee has to serve more than 180 Days.
