Military Leave From Work: What It Means for Employers

What it means in practice

In HR, "military leave" covers two things: leave for an employee's own service in the uniformed services, protected by USERRA, and leave an employee takes because a family member is serving, covered by the military family provisions of the Family and Medical Leave Act (FMLA) and some state laws. For how it fits with other protected absences, see leave of absence.

The federal baseline: USERRA. USERRA (38 U.S.C. 4301-4334) is administered by the Department of Labor's Veterans' Employment and Training Service (VETS); its rules for private and state employers are at 20 CFR Part 1002. USERRA is a floor, not a ceiling: employers may give more, and it overrides any state law, contract or policy that reduces its rights or adds conditions (20 CFR 1002.7).

Which employers are covered. Every public and private employer in the United States, of any size, is covered. Foreign employers must comply for employees working in the United States, and American companies must comply abroad unless that would violate local law (20 CFR 1002.34). There is no minimum length of employment.

Which employees and service are covered. USERRA covers all military training and service, voluntary or involuntary, for National Guard, Reserve and active-duty members (20 CFR 1002.6), plus military fitness exams and authorized funeral honors duty (1002.54 and 1002.55). VETS says the CREW Act of 2022 extended it to FEMA reservists deployed to major disaster sites. Temporary, part-time, probationary and seasonal employees are covered (1002.41). Not covered: independent contractors (1002.44); the NOAA Commissioned Corps, Civil Air Patrol and Coast Guard Auxiliary (1002.62); and National Guard duty under state orders, such as a governor's flood call-up (1002.57).

Notice before leaving. The employee, or an appropriate military officer, must give the employer advance notice, verbal or written, in no particular format. USERRA sets no lead time, though Department of Defense rules quoted in the regulation recommend 30 days when feasible (20 CFR 1002.85). Notice is excused by military necessity or when it is impossible or unreasonable (1002.86). The employee does not need permission (1002.87) and need not say whether he or she will return (1002.88). The employer cannot refuse reemployment because it finds the timing, frequency or length of service unreasonable, but it may raise concerns with the military authority (1002.104).

The five-year limit. Reemployment rights last through a cumulative five years of service with a particular employer (20 CFR 1002.99). Only time actually in service counts, not the time between finishing service and reporting back (1002.100). Exclusions include periodic Guard and Reserve training such as drills and annual training, certified additional training, service needed to finish an initial obligation, and involuntary active duty or service in a war or national emergency (1002.103).

Status and benefits during service. A serving employee is treated as on furlough or leave of absence, even if the employer labels the employee "terminated" (20 CFR 1002.149), and receives the non-seniority benefits given to similarly situated employees on comparable leave, using the most favorable comparable leave. Duration is often the key comparison, and vacation accrual is required only if comparable leaves receive it (1002.150).

Pay and paid leave. USERRA does not require pay for time spent in service, though paid military leave is allowed (20 CFR 1002.7(c)). A policy of a set number of paid days does not let the employer refuse unpaid leave beyond them (1002.7(d)), and paying the employee does not excuse other benefits (1002.151). On request, the employee must be allowed to use accrued vacation or similar paid time off, but the employer may not require it; sick leave need not be allowed unless it may be used for any reason or for comparable leaves (1002.153).

Exempt employees. An employer cannot deduct from an exempt employee's salary for absences caused by temporary military leave, but it may offset military pay received for a week against that week's salary without losing the exemption (29 CFR 541.602(b)(3)). No salary is required for a workweek with no work (541.602(a)(1)).

Example: an exempt employee's training week. As a hypothetical, an exempt employee paid $1,200 a week works two days, spends three at military training and receives $500 in military pay for that week. The employer may not deduct for the training days but may offset the $500, so it pays at least $700.

Health plan coverage. An employee with employer health coverage may elect to continue it, with any dependent coverage, for the lesser of 24 months or until the employee fails to return or apply on time (20 CFR 1002.164). For service under 31 days, the employee pays no more than the regular employee share; for 31 days or more, up to 102% of the full premium (1002.166). As a hypothetical, for 60 days of service a plan with an $800 full monthly premium could charge up to $816 a month. USERRA does not require an employer to offer a plan. Coverage ended by service must be reinstated on reemployment without new waiting periods or exclusions, except for conditions the Secretary of Veterans Affairs finds service-connected (1002.168).

Returning to work. Deadlines depend on length of service (20 CFR 1002.115). After less than 31 days, the employee reports at the first full regularly scheduled work period on the next full calendar day, after safe travel home plus eight hours. After 31 to 180 days, the employee applies, verbally or in writing, within 14 days; after more than 180 days, within 90 days. Recovery from a service-connected illness or injury extends the deadline, generally up to two years (1002.116). A missed deadline does not forfeit USERRA rights; the employer's usual absence rules apply (1002.117).

Example: reporting deadlines. In the regulation's example, an employee who arrives home at 10 p.m. after short service cannot be required to report before 6 a.m. the next morning (1002.115(a)). As a hypothetical, if a 120-day order ends June 1, the application is due by June 15; if a 200-day deployment ends June 1, by August 30.

Documentation. After more than 30 days of service, the employer may request documents showing timeliness, the five-year limit and a non-disqualifying separation, such as a DD 214 or endorsed duty orders, but must reemploy if they are not readily available (20 CFR 1002.121 to 1002.123). Rights end after a dishonorable, bad conduct or other than honorable separation (1002.135).

Prompt reemployment and the escalator position. Reemployment must occur as soon as practicable, generally within two weeks of the application, and after weekend Guard duty usually the next scheduled working day (20 CFR 1002.181). The employee returns to the "escalator position": the job, pay, seniority and status he or she would have attained with reasonable certainty, which could mean a promotion or a layoff (1002.191 and 1002.193). If the employee cannot qualify after reasonable efforts by the employer, such as training at no cost to the employee, the pre-service position or the nearest approximation follows (1002.196 to 1002.198). Pay includes raises the employee would have received with reasonable certainty (1002.236), and service is not a break in seniority (1002.210).

Employer defenses and discharge protection. The employer must prove that changed circumstances, such as a reduction in force that would have included the employee, make reemployment impossible or unreasonable; that helping the employee qualify is an undue hardship; or that the job was brief and nonrecurrent. Hiring a replacement is not a defense (20 CFR 1002.139). After more than 30 days of service, the employee may be discharged only for cause for 180 days (31 to 180 days of service) or one year (more than 180 days) (1002.247).

Retirement plans. Service counts as continuous employment for plan participation, vesting and accrual (20 CFR 1002.259). Employees may make up missed contributions or deferrals, without interest, over up to three times the length of service, capped at five years, and employer matches follow the makeup amounts (1002.262 and 1002.263). As a hypothetical, six months of service gives up to 18 months to make up deferrals; three years gives five, not nine.

How the FMLA fits. A returning employee is credited with the months and hours he or she would have worked during service for FMLA eligibility (29 CFR 825.110 and 20 CFR 1002.210). For family members, qualifying exigency leave gives up to 12 workweeks when a spouse, child or parent is deployed to a foreign country or notified of an impending call. Exigencies include short-notice deployment (up to seven days), military events, childcare and legal arrangements, counseling, up to 15 days with a member on Rest and Recuperation leave, and post-deployment activities within 90 days (825.126). Military caregiver leave gives up to 26 workweeks in a single 12-month period to care for a current servicemember, or a veteran discharged within five years, with a serious injury or illness, with all FMLA leave combined capped at 26 workweeks in that period (825.127).

Where states differ: Washington. These two states are examples, not a complete list. The Washington Department of Labor and Industries (checked November 2026) says the Military Family Leave Act, RCW 49.77, gives an employee whose spouse or registered domestic partner is in the armed forces, National Guard or Reserves up to 15 days of job-protected leave per deployment during a period of military conflict, before deployment or during leave from deployment. It covers employers of any size except federal agencies, and employees averaging 20 or more hours a week. The leave is unpaid unless the employee uses accrued paid leave, and notice is due within five business days of official notice. L&I policy ES.C.12 says the 15 days are scheduled workdays, may be intermittent, and may be verified with documents such as deployment orders.

Where states differ: New York. New York Paid Family Leave (checked November 2026) can be used when a spouse, domestic partner, child or parent is on active service in a foreign country or notified of an impending call, for the same reasons as FMLA exigency leave. For 2026 it lists up to 12 weeks at 67 percent of pay, up to a cap, paid by the employer's insurance carrier, with 30 days' notice when foreseeable. It does not cover the employee's own service. The federal regulation also notes that many states protect Guard members on state orders, which USERRA does not (20 CFR 1002.57(b)).

Posting and enforcement. Employers must notify covered persons of USERRA rights, which they may do by posting the "Your Rights Under USERRA" notice where employee notices are customarily placed (38 U.S.C. 4334; Part 1002 appendix). An individual may file with VETS or sue a private employer directly (20 CFR 1002.288 and 1002.303). Courts may award lost wages and benefits, plus an equal amount as liquidated damages for willful violations (1002.312).

Recordkeeping. Reemployment decisions depend on departure and return dates, cumulative service with the employer and any documents requested. When family military leave is designated as FMLA leave, records of dates, partial-day hours and notices must be kept at least three years (29 CFR 825.500). Tracking these dates is part of absence management.

Questions employers ask. Must a private employer pay military leave? No, though exempt salary rules still apply (1002.7 and 29 CFR 541.602). Can an employer deny leave because the timing is bad? No; it may only raise concerns with the military (1002.104). Do weekend drills count toward five years? No (1002.103). Must the employer hold the same job? It must reemploy in the escalator position, which may differ (1002.191).

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