Military leave: rights and responsibilities
Note: Highlighted words or sections indicate new or updated material from the last version of this guidance.
Both state and federal laws protect employees who are serving on active duty in the military from losing any employment rights or benefits. The Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA) is a federal law that ensures permanent military employees job and benefits protection. The Military and Veterans Code of California prohibits an employer from “discriminating against any member of the military forces as it relates to that individual’s employment, position or status.” This means that an employer cannot discharge an employee because he or she performs military duty or training; prevent him or her from performing military service or attending a military encampment, place of drill or place of instruction; prejudice his or her employment status because he or she does so; or dissuade or prevent an employee from enlisting or accepting a warrant or commission in the National Guard. These protections include employees who are members of the National Guard of another state. A violation of the rule is a misdemeanor, and employers may be liable for actual damages and reasonable attorney’s fees incurred by the injured party. These laws cover all businesses, regardless of size, and also apply to successor employers who take over the interest of a business. Therefore, if an operator buys a location or concept, while there may be an interruption in employment for the employees, those out on military leave must be returned to work by the successor employer once they return from active service. These employers are obligated to reemploy any service people employed by the former employer.
Military leave for spouses and family
Employers in California with 25 or more employees are required by state law (Cal. Military & Vet. Code § 395.10) to allow employees to take up to ten days unpaid off when their military spouses are home on leave from deployment during a period of military conflict. The statute counts both full-time and part-time employees in determining whether an employer meets the 25-employee threshold. However, only employees working an average of 20 or more hours per week are eligible for the leave. Additionally, independent contractors are not eligible for the leave.
Under Family Code section 297.5, the term spouse includes registered domestic partners. Accordingly, an employer must provide a qualified employee with leave if he or she is a registered domestic partner of a qualified member of the military. A qualified member of the military is defined as (1) a member of the Armed Forces of the United States (i.e. Army, Navy, Air Force, Marines, Coast Guard) who has been deployed during a period of military conflict to an area designated as a combat theater or combat zone by the President of the United States; or (2) a member of the Armed Forces Reserve Components or the National Guard who has been deployed during a period of military conflict.
The statute defines period of military conflict as either “a period of war declared by the United States Congress; or a period of deployment for which a member of a reserve component is ordered to active duty either by the Governor or the President of the United States.”
Combat zones are designated by the President by Executive Order. Therefore, in order for an employee to qualify for leave, an employee’s spouse must be a member of the active duty military currently on leave from serving in an actual combat zone. If the employee’s spouse is a member of the Reserve Components or National Guard, however, then the spouse is entitled to 10 days of unpaid leave during the employee’s military spouse’s period of activation, regardless of whether the service is in a combat zone. This is a subtle but important distinction, because a member of the Reserve Component might be called upon to backfill a position in the United States or Western Europe vacated by an active duty member of the military and, thus, would not be serving in a combat zone. These servicemembers’ families are equally entitled to the 10 days of unpaid leave under the law.
Military spouses wishing to take time off must give the employer notice of their intent to take time off within two business days of receiving notice that their spouses will be on leave from deployment, and must provide their employers with written documentation certifying that the spouse will be on leave from deployment during the time during which the employee is requesting leave.
Employers can allow employees to use accrued sick pay, Paid Time Off or vacation during this leave but cannot require them to do so. Employers are not required to pay non-exempt employees during their leave but must pay a full week’s salary to exempt employees who perform any work in a work week. Exempt employees are not entitled to pay for work weeks in which they perform no work.
Employers cannot retaliate against employees who request or take this leave. An employer must reinstate an employee to his or her original position upon return from this leave.
Additionally, employers are required to allow a spouse, child, parent, or next of kin of an active duty service member of the Armed Forces to take exigency leave of up to 26 weeks to care for a soldier if he or she is undergoing medical treatment or receiving treatment or therapy or has suffered a serious injury or illness, or for other “qualifying exigencies, including child care and other related arrangements pertaining to the deployment of an Armed service member to a foreign country.” Employers should be proactive about notifying their employees about the potential military leave options available to them. At a minimum, they should ensure that they update their FMLA handbook policies and postings to include information about military leave.
Notification of rights under USERRA
All employers are required to provide individuals entitled to rights and benefits under USERRA a notice of their rights, benefits and obligations.
Call-up notification to employers
All employees are required to provide advance written or verbal notice of the need for military leave, unless prevented from doing so by military necessity or if providing notice would be impossible or unreasonable. An employer may request copies of the employee’s orders and may contact the issuing military office to confirm their validity.
Payment of wages
Employers are not required to pay employees during the period they are on active duty. The military will pay them according to rank. Once the employee returns, there is no back-pay entitlement. Employers may, however, pay service people the difference between their old salary and their military salary while on active duty. This is at the discretion of each employer. Employees may elect to take paid vacation or paid leave time during the period of duty in order to receive pay. An employer, however, cannot require an employee to use any paid leave time.
With regard to benefits, employees leaving a job for military duty should generally be given the same treatment as required under an employer’s other leave policies (i.e., parental leave, family leave or disability leave). If an employer provides different benefits for various types of leave, the most favorable benefits apply to employees in the military. (Note also that pregnancy-related leaves are granted this “most-favored leave” status, as well.)
USERRA requires employers to continue health coverage for up to 24 months for employees on military leave (and their dependents), whether or not an employer provides health coverage during other leaves of absence and even if the employer is not covered by COBRA or Cal-COBRA. The health coverage may terminate before the end of the 24-month period if an employee fails to return to work after military service or provides written notice of his or her intent not to return to work after military service.
If military service is longer than 31 days, an employer may charge up to 102 percent of the cost of the health coverage as determined under COBRA. If the military leave is for 31 days or less, the employer may charge only the employee’s share, if any.
Employees on active military duty on or after October 13, 1994 (and their dependents) may elect to continue or reinstate health coverage for the remainder of the 18-month period measured from the date the employees left their jobs for military service.
USERRA does not specify the method by which employees on military leave must pay for continuation coverage. Therefore, plan administrators may develop a reasonable procedure for payment consistent with the terms of the health plan.
USERRA grants employees in the military reemployment rights under the following circumstances:
- If the employee gives advance notice (written or oral) of his or her military service to the employer (see below);
- Is absent for five years or less;
- Is separated from military service under honorable conditions; and
- Reports for reemployment within certain time periods.
Advance notice of military service is not required if it is impossible or unreasonable under the circumstances. The five-year limit does not include certain military service (i.e., inactive duty training [drills], involuntary recall to or retention on active duty, etc.).
Employees performing military service for fewer than 31 days must report for reemployment no later than the first regularly scheduled workday that occurs after a reasonable time for the employee to return to his or her residence, plus eight hours. Those serving more than 30 but less than 181 days must submit an application for reemployment within 14 days after the completion of military duty. Those serving more than 180 days must submit an application for reemployment within 90 days after the completion of military duty. Military leave can be extended for an additional two years or longer if the employee is hospitalized or recovering from an illness or injury incurred or aggravated during military service or if reporting or reapplying to work is unreasonable or impossible.
An employer is not required to reemploy an employee if reemployment is unreasonable or impossible because the employer’s circumstances have changed or would cause an undue hardship on the employer. The employer has the burden of establishing that any of these circumstances exist.
Once an employee has returned from military service and is reemployed, USERRA prohibits an employer from discharging the employee without cause for specified time periods. An employer cannot terminate an employee without cause who served more than 180 days for one year. If the employee served less than 180 days, but more than 30 days, the employer cannot terminate the employee without cause for 180 days. If military service is less than 31 days, an employer presumably can immediately discharge a reemployed employee for reasons unrelated to the employee’s military service.
USERRA allows employers to request documentation that confirms:
- The length of military service did not exceed five years;
- The discharge from the military was under honorable conditions; and
- The employee is reporting on a timely basis.
Failure to provide documentation cannot be used as a basis for denying reemployment if the requested information is not readily available.
USERRA codifies the so-called “escalator principle” for determining the position of employees who are reemployed after returning from military service. An employer must reemploy an employee who served in the military 90 days or less in the same position the employee would have held, absent military service. If this position is higher than the position the employee held when he or she left for military service and the employee is not qualified for that position, the employer has a duty to make all reasonable efforts to train the employee for the position. If the training is unsuccessful, then the employee is entitled to the position he or she held when military leave began.
If the employee served for more than 90 days, the employee is entitled to the same position he or she would have held, absent military service, or a position of similar seniority, status and pay. If the employee is not qualified to hold that position, the employer must make reasonable efforts to train the employee. If such training is unsuccessful, then the employer can either place the employee in the same position he or she held at the time military leave began or a position of similar seniority, status and pay to the old position.
Thus, the reemployment rights under USERRA for employees serving more than three months are much greater than those of most other leave statutes, which usually only require reemployment in the same or equivalent job that the employee had when he or she went on leave. For extended military leaves, this provision of the statute can be challenging to comply with.
USERRA has special rules for employees disabled while in the military. An employer must make reasonable accommodations to return an employee disabled by his or her military service in the position he or she would have held, absent military service. If the employer is unable to fulfill this obligation, even with a reasonable accommodation, then the employer must place the employee in a position of equivalent seniority, status and pay. If this is impossible, the employer may place the employee in a position of lesser status and pay, but with equal seniority.
For employees (and dependents) whose health coverage is terminated because of the employee’s military service, USERRA requires the employer to reinstate their coverage upon reemployment of the employee without imposing any exclusions or waiting periods that would not have been imposed had the coverage not been terminated. This rule does not apply to any illness or injury incurred or aggravated during military service.
For reemployed employees, USERRA requires employers to count all military service for any benefits based on length of service. For example, if vacation days are based on years of service, then the employer must count military service for vacation purposes.
Vacation and holidays
Employers need only provide vacation and holiday benefits to an employee on military leave if it also provides those benefits to similarly situated employees on comparable leaves. For example, if an employer offers continued holiday and vacation pay to employees on “comparable” leaves, it must also offer these benefits to employees on military leave. The most significant factor to consider in determining whether a leave is “comparable” to military leave is the duration of the leave. Upon returning from a military leave, an employee should earn vacation and holiday pay at the rate he or she would have earned but for the leave.
Employers must make up contributions to defined contribution plans when they reemploy employees after military service. The contributions need not include lost earnings or forfeitures that would have been allocated to the employees had the contributions been made during their military service.
Reemployed employees are entitled to make up their employee contributions (i.e., required employee contributions under defined benefit plans, or elective deferrals under defined contribution plans) for their period of military service. The make-up payments may not exceed the amount that would have been required or allowed if the employees had been continuously employed. The make-up payment period begins upon reemployment and cannot exceed three times the period of military service or, if less, five years. For make-up employee contributions, reemployed employees are entitled to employer contributions or benefits that are contingent on employee contributions.
To calculate employer and employee contributions, the employer must use the rate of compensation the employee would have received if he or she had not entered military service. If that rate of pay cannot be easily determined (e.g., where compensation is based on commissions earned) then the employer must use the employee’s average rate of compensation during the 12-month period immediately preceding his or her military service.
If a multi-employer pension or health plan does not have a method for allocating liability for employees reemployed after military service, then the last employer employing the employee before military service is liable. If that employer no longer exists, the plan is liable. An employer contributing to a multi-employer pension plan must notify the plan administrator, in writing, within 30 days after the employer rehires an employee with veteran’s reemployment rights.
Employees may waive their military leave rights and benefits if they knowingly provide written notice of their intent not to return to their employer after military service.
Protection against termination
Military service may change an employee’s “at-will” employment status. For example, if the military service of the employee was more than 30 days but less than 181 days the employee cannot be terminated after they return to work, unless for good cause, for at least 180 days. Moreover, an employer cannot terminate an employee that served more than 180 days of military service, unless for good cause, for at least one year after the employee has returned to work. An employer may also show that business necessity, such as, the rehire would cause an undue financial hardship and this may excuse them from their obligation to rehire the employee.
This report was reviewed in 2020 by Weintraub | Tobin. Weintraub | Tobin provides this information for general informational purposes only. The information is not, and should not be relied upon or regarded as, legal advice. No one should act or refrain from acting on the basis of such content or information, without first consulting with and engaging a qualified, licensed attorney, authorized to practice law in such person’s particular jurisdiction, concerning the particular facts and circumstances of the matter at issue.