Military Leave -- No Notice -- Job Protection

Submitted by Federated Insurance

Q: We have an employee who left unexpectedly three-quarters of the way into his shift, stating he was leaving because he was going on military leave for one year. We’ve not been able to reach him to get further details, and we haven’t received any sort of formal documentation backing up his claim. Are we required to hold his job for him for this year? If so, should we have received some sort of formal documentation backing up his claim?

A: Under the federal Uniformed Services and Reemployment Rights Act (USERRA), if an employee in the military needs time off from work for training, reserve duty or any other active duty, he or she is entitled to take up to a maximum of five years of job-protected leave for this purpose, cumulatively, even if the leave is taken in intermittent intervals. An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation, and an employee’s rights under the Act apply without regard for his or her tenure with the employer.

However, in order for an employee to enjoy the protection of USERRA, he or she must meet all five of the following criteria:

• he/she must be absent from a civilian job on account of service in the uniformed services;

• he/she must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise was impossible or unreasonable to provide;

• the cumulative period of military service with the employer must not exceed five years;

• he/she must not have been released from military service under dishonorable or other punitive conditions; and...read more.