Leave for Military Service


United States military personnel are deployed in nearly 130 countries around the world. Servicemen and -women perform a variety of duties around the globe, from combat operations to peacekeeping to training with foreign militaries. Many Americans serving in the military have had to take leave from civilian jobs; thanks to federal law, however, those jobs are protected.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides valuable rights for all employees who perform military service. The uniformed services include the full-time and reserve components of the Army, Navy, Marine Corps, Air Force, Coast Guard, and National Guard and the commissioned corps of the Public Health Service. USERRA applies to voluntary as well as involuntary service, in peacetime and in wartime. The law applies to virtually all civilian employers, including the federal government, state and local governments, and private employers, regardless of size.
The act prohibits employment discrimination because of an employee’s or applicant’s past, current, or future military obligations. It requires employers to grant an unpaid leave of absence of up to five years to any employee serving in the uniformed services. It entitles employees to reinstatement to their former positions, with the same rights and benefits they had on the date they began uniformed service. This includes seniority-based rights and benefits they would have attained had they remained continuously employed, such as status, rate of pay, pension vesting, and credit for pension benefits. While in uniformed service, employees are to be treated as if on leave of absence and are entitled to any non-seniority-based benefits that are available generally to employees on leave of absence. For example, USERRA gives an employee the right to continue health insurance coverage during periods of military service. The employee may be required to pay for the health insurance.
In order to be reinstated to a civilian job following a period of service in the uniformed services, a military member must

  • Have informed the employer that he or she was leaving the job for service in the uniformed services
  • Not have served more than five years
  • Have been released from service under “honorable conditions”
  • Have reported back to the civilian employer in a timely manner or have submitted a timely application for reemployment.

USERRA also provides certain employees with special protection against firing.
It provides that a person who is reemployed cannot be fired except for cause within one year after reemployment, as long as the employee’s period of military service was more than 180 days. An employee whose period of military service was more than thirty but less than 181 days may not be fired except for cause within 180 days after reemployment.
The Office of Veterans’ Employment and Training Service (VETS) of the Department of Labor has the responsibility for investigating complaints under USERRA.
Individuals may also file lawsuits in federal court to enforce their rights. If you think your rights under USERRA have been abridged, talk to your lawyer to find out what steps you need to take.

(Winter 2006)


This article does not constitute legal advice but presents only a general overview of common legal principles. Those principles may vary by jurisdiction. You should consult legal counsel with regard to your specific situation. No attorney-client relationship is formed by the publishing of this article.