USERRA Facts, Question and Answers
1. Is an employee protected from unlawful discrimination by an
employer based on military affiliation?
Yes. USERRA provides protections for initial hiring, adverse
employment actions, and discrimination by an employer if the
action relates even in part to the employees military service. This
protection also extends to potential witnesses of a discriminatory
action on the part of an employer. Section 4311.
2. Can an employer refuse to allow an employee to attend
scheduled drills or annual training?
No. Employees must be excused from work to attend inactive
duty training (drill) or annual training and the employer must
treat the employee as if he or she has not been absent, Sections
4303 and 4312.
3. Is there a limit to the amount of military leave an employer
Yes. Although there is no longer any differentiation between
voluntary and involuntary military duty, there is a 5-year
cumulative service limit on the amount of voluntary military
leave an employee can use and still retain re-employment rights.
4. What is not included 'in the 5-year cumulative total?
The 5-year total does not include: inactive duly training (drills).
annual training, involuntary recall to active duty, or additional
training requirements determined and certified in writing by the
Service Secretary, and considered to be necessary' for
professional development or for completion of skill training or
retraining. Section 4312.
5. Is prior notice to the employer required for leave of absence
for military duty?
Yes. Unless precluded by military necessity, advance notice
must be provided either orally or in writing. The context for
what constitutes timeliness of notification was not spelled out in
detail by Congress under USERRA. However, employees who
participate in the National Guard or Reserve should provide
their employers as much advance notice as possible. Failure to
provide notice could result in a denial of the protection of
USERRA. Section 4312.
6. What are valid military orders?
All written or verbal orders are considered valid. when issued
by competent military authority. A military member in receipt of
official orders is obligated by federal statute to execute them. The
recurring requirement to perform inactive duty training (drill) is
an example of when written orders may not be formally issued.
7. When may an employer require an employee to provide
official, written military orders?
After periods of military leave of absence for more than 30
days, the employer has the right to request such documentation,
which can be used to establish the employee's basic eligibility for
protection under USERRA. All National Guard and Reserve
members are encouraged to provide a copy of orders, the annual
drill schedule, or other type of documentation to employers as
soon is available and, if possible, before the commencement of
military duty. Section 4312.
8. What if the employee cannot provide satisfactory
documentation for military service in excess of 30 days?
The employer must promptly reinstate the employee pending
.its availability. The employer may contact the military unit If
necessary. Section 4312.
9. Can an employer require an employee to apply for military
leave of absence or otherwise submit official documentation for
approval of military leave of absence?
No. As stated earlier, an employer may not require
documentation for notification prior to military duty. Further, an
employer does not have "right of refusal" for military leave of
absence, so long as the employee has not exceeded the 5 years of
cumulative service provided under USERRA. Section 43-12.
10. Can an employee be required to find someone to cover his or
her work period when military duty Interrupts the work
No, an employee is responsible for notification but not -for
altering the work schedule or finding a replacement. Section
11. Can an employer require an employee to reschedule drills,
annual training or any other military duty obligation?
No. Upon receipt of oral or written notification an employer
must grant military leave of absence. However, the employer is
not precluded from contacting the employee's military
commander. When military duties require an employee to be
absent from work for an extended period, during times of acute
need, or when (in light of previous leaves) the requested military
leave is cumulatively burdensome, the employer may contact the
military commander of the employee's military unit to determine
if the duty could be rescheduled or performed by another
member. If the military commander determines that the military
duty cannot be rescheduled or canceled the employer is required
to permit the employee to perform his or her military duty.
12. Is an employer required to pay an employee who is on
military leave of absence?
No. While many employers offer differential pay or a specific
number of paid military leave days, an employer is not required
to pay an employee on military leave of absence. Section 4316.
13. Are there time limits for an employee to return to work after
completion of military duty?
Yes. There are three formats for reinstatement (application
for re-employment), dependent on the duration of military
service. Please refer to question 15 for a detailed breakdown of
these formats. An employer should reinstate an employee within
a matter of days of application, If not on the same day as the
application is made.
14. After completion of weekend drill, what is the time limit for
an employee to return to work?
Either the beginning of the next regularly scheduled work day
or during that portion of the next regularly scheduled shift that
would fall Eight hours after the end of drill and a reasonable
amount of time to commute home For example, an employer
cannot require a service member who returns home at 10 pm to
report to work 2.5 hours later at 12:30 a.m.
However, the employer can require the employee to report for
the 6 a.m. shift, or scheduled work period, the next morning
(after reasonable commute from military duty to home followed
by 8-hours) Included in tho 8 hour period is time for rest and the
commute to work. Section 4312
15. What is the time limit for an employee to return to work
After Annual Training or other types of extended military leave
Time limits for returning to work depend on the duration of
the orders The rules are:
Service of 1 to 30 days: the beginning of the first regularly
scheduled work day or 8 hours after the end of the military duty,
plus reasonable commuting time from the military duty station to
Service of 31 to 180 days: application for reinstatement must be
submitted not later than 14 days after completion of military
Service of 181 of more days: application tor reinstatement must
be submitted not later than 90 days after completion of military
duty. Section 4312.
16. What if the employee has an accident, is delayed by lack of
military transportation, or is otherwise unable to report back in a
The employee must report back to work as soon as possible. If
the reason for the employee's delay is not related to military
duties, the employee is subject to the personnel policies and
practices the employer would normally apply to employees with
un-excused absences. Section 4312.
17. What if an employee is injured or incurs a disability during
The deadline for reinstatement may be extended for up to 2
years for persons who are convalescing due to a disability
incurred or aggravated during military service, and employers
must make reasonable accommodations for the impairment.
18. What job position is an employee returned to after military
leave of absence?
Except with respect to persona whose disability occurred in or
was aggravated by military service, the position into which an
employee is reinstated is determined by priority, based on the
length of military service. The rules are: Service of 1 to 90 days:
(a) in the job the person would have held ~ad he or she remained
continuously employed (possibly a promoted position), so long as
the person is qualified for the job or can become qualified after
reasonable efforts by the employer, or (b), If the person cannot
become qualified, in the position the person was employed on the
date of the commencement of the military service. * Service of 91
or more days; (a) same as for service of 1 to 90 days, or a position
of like seniority, status and pay, so long as he or she is qualified,
or (b) if the person cannot become qualified, in the position the
person was employed on the date of the commencement of the
military service or when nearly approximates that position. Note:
The reemployment position with the highest priority reflects the
"escalator' principle, which requires that a returning service
member steps back onto the seniority escalator at the point the
person would have occupied if the person had remained
continuously employed. Section 4313.
USERRA specifies that returning employees must be "promptly
re-employed" What is prompt will depend on individual
circumstances. Reinstatement after 3 years on active duty might
require two weeks to allow giving notice to an incumbent
employee who might have to vacate the position.