What happens if I do not return to work within the appropriate time period? Do I lose my rights under USERRA?
Not necessarily. Your employer cannot automatically deny you reinstatement. Instead, it must apply its attendance policy. For example, if you miss four days of work, and your employer’s policy permits termination for missing three days of no call/no show, then you could be denied reemployment.
Can an employer require employees to use their annual leave while serving in the military?
Employees must satisfy five criteria to be eligible for USERRA protection:
They have held a job for a significant amount of time with a reasonable expectation that the position would continue.
They gave written or verbal notice to their employer before leaving their job to serve in the military.
They have not exceeded the five-year cumulative limit on periods of service.
They have been released from military service for conditions other than dishonorable.
They report back to the civilian job in a timely manner or submit a timely application for reemployment.
How long does USERRA protect service members?
Under USERRA, employees are entitled to protection for up to five years of cumulative military service. In some limited cases, the five-year limit can be waived:
The individual, through no fault of his or her own, cannot obtain release from service in excess of five years.
Involuntary service performed during wartime or during a national emergency is excluded from the five-year period.
Required drills, annual training, or other training duty necessary for professional development does not count toward the five-year quota.
How soon do I have to report for reinstatement after I return from serving in the military?
The answer to this question depends on the length of service.
For service up to 30 consecutive days, employees must report back on the first full workday following the completion of the period of service and transportation home, plus an 8-hour period for rest.
For service between 31 and 180 days, employees must apply for reemployment—either in writing or verbally—no later than 14 days after completing the period of service.
For service of 181 days or more, employees must apply for reemployment within 90 days after completing their period of service.
All of these periods can be extended two years to accommodate a period of hospitalization or convalescence from an injury or illness that occurred during military service.
How much notice do I have to give my employer if I know I will be leaving to serve in the military?
The law does not require a specific amount of advance notice. You can provide the notice verbally or in writing.