Last Updated on September 21, 2026 by MyHRConcierge
Military service can temporarily take employees away from their civilian careers, whether for short-term training or an extended deployment. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides important employment protections for service members in the civilian workforce and establishes responsibilities for employers when an employee takes military leave.
For employers, understanding USERRA is essential to ensuring employees are protected before, during and after their military service.
In the companion episode of the MyHRBuzz Podcast, hosts Chris Cooley and Emily Frederick, SHRM-CP, break down USERRA and what employers need to know about military leave, notice requirements, pay and benefits, reemployment rights, and reasonable accommodations. The episode also explores real-world USERRA cases and key considerations for employers.
What Is USERRA?
The Uniformed Services Employment and Reemployment Rights Act of 1994, commonly known as USERRA, provides employment protections for individuals who serve in the uniformed services.
These protections apply at several stages of an employee’s relationship with an employer. USERRA protects individuals seeking civilian employment from discrimination based on past, present or future uniformed service. It also protects current employees from having their military service considered when making decisions involving termination, discipline, promotions or employment benefits.
Employees preparing for deployment are also protected. For example, an employee generally cannot be denied a promotion because they have received military orders that will require them to deploy in the future. During military service, employees must be treated similarly to other employees who are on a leave of absence, whether the absence lasts a few days for training or several years for an extended deployment. Upon returning from qualifying military service, USERRA provides reemployment protections, subject to certain requirements and exceptions.
Which Employers Must Comply With USERRA?
USERRA applies to virtually all employers, regardless of size. This means employers should have procedures in place to appropriately handle military leave and understand their obligations when an employee provides notice of upcoming service.
According to MyHRConcierge’s Senior HR Consultant, Emily Frederick, SHRM-CP, in the companion MyHRBuzz Podcast episode, “Whether they have 1,000 employees or whether they only have one or two employees, the USERRA law applies.”
What Should Employers Do When an Employee Gives Notice of Military Service?
Employees are generally expected to provide advance notice of upcoming military service. Notice may be provided verbally or in writing. However, advance notice is not required when military necessity prevents the employee from providing it or when providing notice is otherwise impossible or unreasonable.
An employer cannot require an employee to provide a copy of their military orders as a condition of taking leave. However, an employer may contact the employee’s commanding officer to confirm certain details when appropriate.
It is also important for employers to understand that an employee is providing notice of military leave rather than asking for permission. An employer generally cannot veto the timing or length of the military leave, and the employee cannot be required to find another employee to replace them while they are away.
Have Questions?
Get answers to questions about government rules and regulations that may affect your business by using MyHRConcierge. We provide expert guidance to employers that helps them stay compliant with state and federal labor laws—fast.
Is Military Leave Paid?
USERRA does not generally require an employer to pay an employee during military leave. However, employers cannot require an employee to use accrued paid time off for military leave.
There are also circumstances in which an employee’s compensation may be affected by other wage-and-hour requirements. For example, under the Fair Labor Standards Act, a salaried employee who works any portion of a workweek or pay period generally cannot have their salary reduced for that period because of the military leave. An employer may, however, offset the employee’s salary with compensation the employee receives from military service, where applicable.
Principal and Co-Founder of MyHRConcierge, Chris Cooley, stated in the companion podcast episode, “You don’t have to go anything above and beyond what you’re currently doing for your other non-military or non-deployed employees, but you have to at least stay with that minimum.”
Employers should also evaluate their military leave policies alongside their other leave policies. USERRA requires military leave to be treated consistently with comparable forms of leave offered by the employer. This can become particularly important when an employer provides pay or benefits for other types of leave.
How Does USERRA Affect Employee Benefits?
Benefits must be provided consistently with the way an employer provides benefits to employees who are laid off or taking other forms of non-military leave.
When an employee is going to be away for more than 31 days, the employee may elect COBRA continuation coverage, with eligibility for up to 24 months. Upon returning from qualifying military service, benefits must be made immediately available without a waiting period. Employers should carefully review their benefits administration procedures when an employee begins military leave and again when the employee returns to work.
What Are an Employee’s Reemployment Rights?
Reemployment is a strict employer requirement when an eligible employee requests to return to work. To qualify, an employee generally must have followed the applicable USERRA requirements, including providing appropriate notice when required.
USERRA also includes a five-year cumulative limit on qualifying military service with an employer, although certain types of service do not count toward that limit and specific circumstances may allow the period to be longer. The employee must also return to work or request reemployment within the applicable timeframe based on the length of military service.
The employee’s separation from military service must also be under circumstances that do not disqualify the employee from USERRA protections.
How Quickly Must an Employee Be Reemployed?
When an employee is entitled to reemployment, the employer must promptly reemploy the employee. The employee’s request to return can be verbal or may be implied by the employee simply returning to work following a period of service.
The applicable timeframe for returning to work varies depending on the length of military service. These periods are typically divided into service lasting fewer than 30 days, 31 to 180 days and more than 180 days. Reemployment obligations can apply even when the employer has already “replaced” the employee during their absence.
What Is the “Escalator Principle”?
One of the important concepts employers should understand is the USERRA “escalator principle.” Upon reemployment, an employee is generally entitled to the seniority and benefits they would have attained had they remained continuously employed.
The employee’s returning position can potentially be higher or lower than the position they held before military service, depending on what would have occurred had they remained employed. Emily Frederick, SHRM-CP, mentions it is important to remember that “the elevator goes up and down.”
USERRA can also require employers to provide training necessary to reasonably qualify an employee for their returning position, including training related to new applications, tools, or other changes that occurred during the employee’s absence. Depending on the circumstances, reasonable accommodations may also be required.
An employer’s reemployment obligation may be excused when the employer’s circumstances have changed to the point that reemployment is no longer possible, such as in certain economic layoffs.
Why Does USERRA Compliance Matter?
USERRA compliance can become particularly important when employers offer paid leave or other benefits for non-military absences.
In Huntsman v. Southwest Airlines Co., Southwest Airlines paid employees for certain short-term absences, including jury duty, bereavement and sick leave, but did not provide comparable pay for military leave that met similar criteria. The case examined three primary factors when determining whether different types of leave are comparable: the duration of the leave, the purpose of the leave and the employee’s control over when the leave occurs. The matter ultimately settled for $18.5 million.
Another example is Thaddaeus Myrick, et al. v. City of Hoover, Alabama. Four police officers took military leave and did not receive holiday pay or other benefits that the city provided to officers who were placed on paid administrative leave during internal investigations, so they claimed disparate treatment. The court determined that military leave was comparable to administrative leave under USERRA. The case also relied on the principle that how an employer characterizes an employee’s status during military leave does not determine whether the leave is comparable under USERRA.
These cases demonstrate why employers should look beyond the labels assigned to different types of leave. When evaluating whether military leave should receive the same treatment as another form of leave, employers should consider the duration, purpose and employee control over the timing of the leave.
Understanding Your USERRA Responsibilities
USERRA provides broad protections for employees and applicants with military service obligations. For employers, compliance involves more than simply allowing an employee to take time away from work. Employers must understand their responsibilities regarding notice, compensation, benefits, reemployment, seniority, training and the treatment of comparable forms of leave.
Establishing consistent leave policies and reviewing how military leave is administered can help employers protect service members’ rights while reducing potential compliance risks. When questions arise regarding a specific employee’s military leave or reemployment rights, employers should consult qualified employment counsel.
For more information on how to enhance your organization’s compliance efforts, contact MyHRConcierge at 855-538-6947, sales@myhrconcierge.com. Or, schedule a convenient consultation below:
This article is intended for general informational purposes only and does not constitute legal advice.
