Time off: Military Leave

by Salary.com Staff - Original publish date: January 16, 2012

Updated laws and legislation protect members of the uniformed services from certain workplace uncertainties, allowing reservists and guardsmen to leave their civilian posts to serve their country without having to worry about job security, delayed compensation, revoked benefits, or other adverse employer reactions.

"Weekend warriors" in peacetime
Normally, a reservist voluntarily signs up for part-time duty, sacrificing two days a month for training plus 15 days a year for an annual tour, a schedule that has led some observers to refer to them as "weekend warriors." In addition, if the reservist has been called into action due to a declared national emergency or in the protection of life and property, they are entitled to an extra 22 days of leave. Not only are they compensated for their part-time military duty, they also receive free training and educational opportunities, retirement plans, and medical benefits while on duty, as well as special allowances, including commissary discounts reserved for military personnel. Most reservists work full time, electing to use their annual time off to fulfill their tour requirements. Only if the president designates reservists necessary in times of war or emergency are they expected to assume full-time military duties. More than 1.2 million men and women serve in the military reserve in the United States, in seven divisions, making up nearly half of the U.S. armed forces. Most of the guardsmen and reservists are air support and telecommunications staff; some are actual fighter squadrons and pilots.

Job protection for reservists
Since reservists are at the mercy of their country's need, certain rights safeguard their full-time professional lives. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) outlines the protections afforded to reservists called into active duty. Under USERRA, it is unlawful for an employer to deny initial employment, reemployment, promotion, or any benefit of employment to a person who is obligated to perform in a uniformed service.

If a reservist employed by a civilian employer is activated by order of the federal government, that person is required to notify the employer, orally or in writing. Valid orders can come in many forms, including written or oral orders issued by a military authority, and therefore employers must accept oral notification that an employee has been activated. An employer does not have a "right of refusal" for military leave of absence, except in extreme cases. Also, employees aren't responsible for finding a replacement, or altering the work schedule - that's the employer's responsibility.

USERRA also forbids an employer from requiring an employee to use his or her vacation or similar leave during a period of military service. In some cases, employees may ask to use vacation time and/or personal days for military duty; in such a case, the time off would be paid at the regular base pay rate.

Pay protections for some
While a reservist is on active duty, his or her employer is generally not required to provide compensation. However, some employers elect voluntarily to pay employees for the difference between military pay and what the employees would have received if their employment had not been interrupted by military service. Some companies even pay full salary up to a certain number of days.

According to The Charlotte Observer, many businesses offered up full pay for 90 days, 180 days, or even a full year (and that's on top of military pay). Wachovia Corporation, located in Raleigh offered reservist employees full pay for up to 180 days, while Duke Energy in Charlotte offered a generous year of full pay and benefits. Other companies, like RJ Reynolds Tobacco, offered to make up the pay difference for as long as one year.

Local governments are also helping. The state of Tennessee, for one, provides compensation for state employees to make up for the difference between their pay from military service and what they would have received from their normal salary.

Healthcare protections for all
When activated for duty, uniformed service members receive military healthcare. In addition, USERRA states that service members and their families may continue to receive employer-sponsored health benefits for up to 31 days, and may opt to continue health coverage for up to 18 months. However, the employee may be required to pay the entire premium, plus a 2 percent administrative fee.

Reemployment guarantees
Employers must reemploy reservists when they return from active duty, but may fill positions with temporary or contract workers for the duration of the original employees' service. Employers must notify temporary workers when reservists are slated to return, and keep the positions open for the returning employees. Reservists must return to their jobs within a predetermined period after they are deactivated, based on how long they were gone.

According to the USERRA, returning service members are "required to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status, and pay, as well as other rights and benefits determined by seniority." This has been coined the "escalator principle," as the absent employee moves up in rank and seniority in their job placement even though the actual person is on active military duty. USERRA also requires that an employer make concerted efforts to train or retrain returning veterans in refresh or upgrade their skills.

Reasonable accommodation must be made for returning employees who have become disabled during their service. If the employer is unable to make reasonable accommodation within the old job, the employee may have any other position for which he or she is qualified or could become qualified. Disabled veterans have two years to return to their jobs after their service ends.