UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994

The basics of the law are:

  • Coverage: Virtually all employers, regardless of the number of employees.
  • Eligibility: Virtually all employees who perform “service in the uniformed services”
  • “Uniformed services” means Army, Navy, Air Force, Marines, Coast Guard, reserves of those branches, Army and Air National Guard, and others designated by the president in a time of war or national emergency.
  • “Service in the uniformed services” means:
    • Active duty,
    • Active duty for training,
    • Inactive duty training (such as drills),
    • Initial active duty training,
    • Funeral honors duty performed by the National Guard and reserve members, and
    • Fitness for duty examinations.
  • Employee protections include:
    • Reinstatement rights;
    • Prompt reemployment;
    • Retraining, if necessary, for example, to regain an expired license or to be trained on upgrades in systems (the burden is on the employer to provide this);
    • Reasonable accommodations for injuries/aggravations;
    • Seniority/benefit accrual while on leave;
    • Protection from discrimination based on military service; and
    • Employers required to show “cause” for terminations occurring up to a year after return from service, depending on the length of leave.  (Employment at will is “out the window,”  but you can still terminate for cause.)
  • Employer protections include:
    • The notice required unless “impossible, unreasonable, or precluded by military necessity.”
    • Five- (5) year cumulative limit on protected leave; however, a number of exceptions apply.
    • Undue hardship defense to reinstatement (but this is a fairly tough standard—tighter than Title VII or the Americans with Disabilities Act).
    • Reinstatement not required where prior employment was for a brief, nonrecurrent period.
    • Right to documentation for leave of 30-plus days.
  • Notice Requirements:
    • Employer to post “Your Rights Under USERRA.”
    • Employee strongly suggested to give 30 days’ notice prior to leaving but not specifically required (no notice if impossible or by military necessity).
    • Employee to notify of intent to return
      • Up to 30 days of service: within 8 hours;
      • 31 to 180 days: within 14 days;
      • 181+ days: up to 90 days after service; or
      • Extended up to 2 years for servicemembers who are hospitalized or convalescing.
  • Reinstatement Rights:
    • Return to the position that would have been achieved if the employee had not gone on leave (“the “escalator” position);
    • If the escalator position is not available, return to the same position or similar position as previously held, depending on the length of leave involved;
    • Retraining required if necessary; or
    • Reasonable accommodations required for employees injured or with aggravated prior conditions resulting from military service.

https://www.justice.gov/crt-military/uniformed-services-employment-and-reemployment-rights-act-1994