Military Leaves of Absence

Military service is an honored choice for many Americans. However, military service requires dedication, training, and often substantial time commitments which may consequently result in a need for time off at the workplace. Fortunately, under both federal and California law, many protections are in place for employees who are seeking to participate or are already actively participating in the armed forces.

Under federal law, the Uniformed Services Employment and Reemployment Rights Act of 1994, also known as “USERRA,” provides the most comprehensive system of rules dedicated to ensuring the fair and equal treatment of employees needing time off for military service. Additionally, in California we have the Military and Veterans Code (§§394 and 395, et seq.) which supplements USERRA and adds additional protections for military employees. Further, the Military and Veterans Code incorporates the provisions of USERRA (Military and Veterans Code §395.5), so that no employee is denied the protections of any federal rules when working in California. Further, when the two bodies of rules are in conflict, employees are entitled to the protections of whichever body of rules provides greater protection to the employee.

USERRA is the more expansive of the two bodies of rules, and it covers any and all employers in the state (as well as in the nation at large). USERRA is generally applicable to any employee serving in the military. This includes coverage for employees who choose to serve in the Army, Navy, Air Force, Marine Corps, Coast Guard, Army National Guard, Air National Guard and more. Further, the protections apply to employees committing to military service of almost any kind, including active duty, active duty for training, initial active duty for training, inactive duty training, and full-time National Guard. USERRA generally forbids, like the Military and Veterans Code, discrimination or retaliation against employees who take leaves of absences in order to engage in military services. As a result, employers are generally forbidden from discharging, failing to hire, or failing to reinstate employees who take military leaves of absences.

To that end, USERRA provides for reemployment rights for as long as five years. Thus, if an employee is deployed overseas for five years and returns home seeking reinstatement, the employee would be protected by USERRA and the employer would be forbidden from discriminating against them.

However, there are certain requirements for employees seeking to take leaves of absence for military service, even under USERRA. The employee must provide the employer with advance “reasonable” notice that the employee will be engaging in military service – though, there are no formal requirements about the kind of notice required, so either verbal or written notice as many days or weeks ahead of time as possible would be encouraged. In fact, the Department of Defense recommends 30 days advance notice, but depending on the circumstances of the leave (such as for an emergency), less notice may be sufficient. As well, the employee’s leave of absence must not exceed five years cumulatively. Though, some leaves are not counted toward the five year limit, such as a “recall to active duty” (such as those recalls following the events of September 11, 2001).

Further, the employee must either submit an application for reemployment or otherwise report back to work by a certain timeframe in order to be guaranteed reinstatement, depending on the length of the military service: i) if the employee’s military leave of absence was 30 days or less, the employee must provide notice of his/her intent to return to work the following day after his/her military leave of absence has ended; ii) if the employee’s leave of absence was longer than 30 days but not longer than 180 days, the employee must provide notice of his/her intent to return to work within 14 days after the expiration of the leave; and iii) if the employee’s leave of absence was longer than 180 days, the employee must provide notice of his/her intent to return to work within 90 days of the conclusion of the leave.

Further, the employee must provide documentation that demonstrates the employee followed the above requirements.

If the above requirements are met, the employee returning from military service is then entitled to reinstatement (generally within two weeks time), and may not be discharged “without cause” for either 180 days or for 365 days, depending on the length of service.

Additionally, employees taking a military leave of absence are generally entitled to continue their benefits through the leave (though for only 24 months for healthcare benefits). Further, employees in many instances are entitled to an escalation of their pay or benefits, if it can be shown that the employee would have received additional pay, benefits, or promotions during the time period when they took the leave of absence.

Under California’s Military and Veterans Code, employers are not allowed to discriminate or retaliate against employees based on their service in the military, whether it be by discharge, adverse employment actions, refusal to hire, failure to reinstate, or any other form of discrimination based on one’s military service. Further, under the Military and Veterans Code, employees must be provided 17 days of unpaid leave of absence to allow the employee to satisfy military obligations (such as, for instance, weekend drills). Additionally, the Military and Veterans Code has extensive additional protections for employees serving in response to a call to arms by the California Governor, as well as for employees who serve either part-time or full time in the National Guard.

The Military and Veterans Code provisions also provide for coverage for the spouses of individuals in the military, providing the spouses up to 10 days of unpaid leave while their partner in the military is on leave from deployment.

If you have recently undertaken a military leave of absence but your employer has failed to reinstate you, or if you have experienced negative treatment or termination from having taken a military leave of absence at your workplace, contact the experienced military leaves of absence attorneys at Kokozian Law Firm, APC. 323-857-5900.