Employers are required to provide time-off to employees who are serving in the military. Employers of all sizes are included in this mandate, and the rules governing your employees' rights are set forth in both federal and state law.
Federal military leave laws
The following are some basic questions and answers about federal military leave laws and your obligations as an employer if you have employees engaged in military service:
- Which employees are eligible for military leave? Any employee who is called to military service, training, reserve duty, etc., who is not a temporary employee is covered by the federal law. That includes employees on probationary status and employees who have been with their employer for only a few days.
- Are employees required to give advance notice to employers of military leave? The answer is generally "yes." Notice may be either written or oral and may be provided by the employee or the military. However, no notice is required if military necessity prevents it or the giving of notice is otherwise impossible or unreasonable.
- Are you required to grant employees leave for active duty military leave? According to the federal law, you are. Although the leave may be without pay for private employers, the employee must be reinstated to the position held before taking military leave upon successful completion of active military duty.
- Active duty leave is usually for an undetermined but potentially long period of time and is occasioned by a state or national emergency, state of war, or actual war. Active duty may also be required for certain military training programs. Active duty leave must be granted for voluntary or involuntary service.
- In addition to active duty leave, the law mandates that you grant annual leave to attend reserve or national guard encampment, maneuvers, drills, training, or any other duty of a short-term nature.
- Do you have to pay your employees while they are engaged in military service? Generally, only public employers are required to pay for any part of military leave. Private employers may grant annual leave with or without pay and may pay for all or part of the leave. In the case of active duty leave, the employer may adopt a policy of paying the difference between civilian pay and military pay.
- What employers may not do, in most cases, is charge military leave to annual vacation leave. Military leave is intended to be in addition to any annual vacation. The employee may, however, choose to use paid vacation time where military leave is not paid.
- Must reservists be paid for time-off for active duty? As a private, nongovernmental employer, you do not have to pay reservists during the period they are on active duty. While some employers have a policy that pays reservists the difference between their regular salary and their military pay, you are under no obligation to do so.
- You should note that reservists generally must give you advance notice prior to leaving for active duty, except if military necessity prevents them from doing so.
Recognizing the impact that losing a key employee may have on a small business, the Small Business Administration (SBA) offers the Military Reservist Economic Injury Disaster Loan (MREIDL) Program. Under this program, the SBA provides low interest loans to small businesses when they are unable to meet their ordinary and necessary operating expenses and financial obligations because an essential employee is called to active military duty from the reserves. However, a MREIDL cannot be used to cover lost income or profits, to replace regular commercial debt, to refinance long-term debt, or to expand the business.
- What about benefits? Any benefits or employment rights that you provide to employees who are on leave of absence for reasons other than military leave must be provided to employees who are on military leave. For example, if you continue to contribute to the cost of benefits for employees and their dependents while the employees are on maternity leave, employees on military leave should be given the same coverage, unless military coverage becomes the primary coverage. Further, employees on military leave should not be discharged and then rehired upon return from active duty if other leave policies do not have a similar requirement.
- What happens when employees come back? Employees who return from military leave must be reinstated to the position they left to take leave or a similar position. This may mean displacing an employee who had been brought in or shifted to cover the absent employee's work when the employee returns from leave.
- In many cases, especially when the employee has been away on active duty for a fairly long period of time, in order to be reinstated the employee must be honorably discharged, must be able to perform the job, and must notify you of the intent to return to work.
The Uniform Services Employment and Reemployment Rights Act (USERRA). The Uniform Services Employment and Reemployment Rights Act (USERRA), provides for military leave and reemployment rights for veterans and reservists and bars discrimination and retaliation based on an employee's military service.
The Veterans Benefit Improvement Act of 2004. The Veterans Benefit Improvement Act of 2004, requires employers to provide a notice informing their employees of their rights, benefits and obligations under the Uniform Services Employment and Reemployment Rights Act (USERRA). The notice requirement can be met by posting a notice where employers customarily provide notices for employees.
The Veterans Benefit Improvement Act of 2004 also requires employers to extend to employees in military service the option of maintaining employer-sponsored health insurance coverage for a two year period.
Need more help? The National Committee for Employer Support of the Guard and Reserve (ESGR) is an agency within the Office of the Assistant Secretary of Defense for Reserve Affairs that provides a wealth of related information on their website.
Military family leave
Under amendments to the Family and Medical Leave Act (FMLA), employers with 50 or more employees must allow up to 26 weeks of leave for eligible family members of certain military personnel to care for service members. In addition, under qualifying exigencies, employers must allow 12 weeks of leave for the spouse, son, daughter, or parent of an eligible service member.
Establishing a military leave policy
You may choose to have a policy that makes clear what employees need to do to request military leave.
Tools to Use
A sample military leave policy is available in the Business Tools.
State military leave laws
Many states have their own laws regarding military leave. Employers in states that do not have laws regarding military leave for private employers are still subject to federal laws.
Consult our state map for your state's requirements regarding military leave and military family leave.