Purpose of this Template

What is Military Leave?

US Laws & Regulations

Documentation

Employee Responsibilities

Employer Responsibilities

Company Leave Policy

Accrual Chart

Benefits

Healthcare

Pension

Performance Management

Communication

Returning to Work

Resources

For Employers

For Employees

Contributors to this Template

Purpose of this Template

The purpose of this document is to provide information about military leave, and share best practices for communication about military leave policies, performance management, and welcoming employees back to work post-leave.  Use this document to learn about military leave, applicable laws and regulations, employee and employer responsibilities, and ways your organization can prepare to support employees participating in military leave.

What is Military Leave?

Military leave is typically granted to an employee for them to conduct active or inactive duties in the National Guard or Reserves. Typical duty throughout the year is one weekend a month and two weeks in the summer. Depending on the activity level of the employee’s assigned unit, there may be additional duty periods throughout the year. Active duties include activation in support of a contingency operation, emergency duty as declared by a state governor, President, or local municipal authority.

US Laws & Regulations

Local governments may have their own applicable regulations as it relates to military service members in the workplace, however, the most common federal regulation is the Uniformed Service Employment Reemployment Rights Act (USERRA). Importantly:

• Employees should not be penalized for being called up for active or inactive duty.
• All applicable benefits and programs that impact the employee during their tenure should be honored while performing military duties.

In addition, The Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination and requires reasonable accommodation in the workplace for individuals with disabilities. Managing on-the-job accommodation requests under the ADA for veterans with disabilities does not require separate procedures from those of other disabled applicants or employees. It is common to have military service members in the workplace that are also individuals with disabilities. Some employers may offer disabled veteran leave to enable those individuals to seek care as it relates to their service-connected disability.

The Family and Medical Leave Act (FMLA). The FMLA was amended in January 2008 and 2010 to permit the family members of military members to take up to 12 weeks of unpaid and job protected qualifying exigency leave and/or up to 26 weeks of unpaid military caregiver leave for a current service member or veteran.

Documentation

Under USERRA, service members are not required to provide documentation to prove an absence was due to uniformed service, unless that service is more than 30 days and the documentation is requested by the employer.  However, per Department of Defense Instruction 1205.12, the Military Departments are required to verify periods of uniformed service upon an employer's request, regardless of duration of the service-related absence. Employers may reach out to the employee's military chain of command to request this verification.

Under exigent circumstances, service members may not be able to provide a copy of military orders for an employer. The National Guard and Reserves typically provide orders to service members upon arrival for active duty in an exigent circumstance. The nature of this duty may make it difficult for an employee to provide notice, provide pay statements to offset pay, etc.  

Employee Responsibilities

Per USERRA, employees must meet the following criteria:

• The person must have been absent from a civilian job on account of service in the uniformed services;
• The person 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 impossible or unreasonable; (typically for service longer than 30 days)
• The cumulative period of military service with that employer must not have exceeded five years;
• The person must not have been released from service under dishonorable or other punitive conditions; and
• The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.

Employer Responsibilities

• Must provide employers with the “Your Rights Under USERRA” poster

• If in a partially or fully remote environment, be sure to add the links and visuals to an intranet (or similar such as an HRIS) location where HR should be keeping mandatory postings readily available for employees to access. This can be in the same location the HR handbook is kept, internal wiki, guru, HR related docs, etc. As long as they are always updated and in a place all employees have access to, they should be compliant!

• Employers may not deny an employee the following as outlined in USERRA: initial employment; reemployment; retention in employment; promotion; or any benefit of employment because of this status.

Company Leave Policy

If your company doesn't have military leave specifically, it is recommended to allow the employee to use the unlimited PTO policy and notate military leave as the description. If your company would like to separate military leave from the standard leave policy, the below chart is an example used by the Office of Personnel Management (OPM) to establish the standard for federal employers.

Accrual Chart^[1]

Benefits

Healthcare

Healthcare and pension plan coverage for service members is also addressed by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the servicemember had remained employed.

• Even if the employee doesn’t elect to continue coverage during their military service, they have the right to be reinstated in the employer's health plan when they are reemployed, generally without any waiting periods or exclusions (e.g., pre-existing condition exclusions) except for service-connected illnesses or injuries.

HR teams may elect to have service members sign agreements documenting the payment structure and schedule. This will be specific to the company and will need to be defined prior to the service members military leave. Most employers will continue contributing to the healthcare plan and the servicemember will continue to contribute their responsible portion either in payroll deductions or in lump sum at the conclusion of service.

Pension

USERRA pension protections apply to defined benefit plans and defined contribution plans as well as plans provided under federal or state laws governing pension benefits for employees. For purposes of pension plan participation, vesting, and accrual of benefits, USERRA treats military service as continuous service with the employer.

Performance Management

If an employee will be absent during a performance review period, the employee should still be considered and reviewed for promotions, salary increases, bonuses, etc.

Best practices for performance management during military leave periods is to prepare as much as possible prior to the military leave commencing. HR should encourage employees and their managers to prepare performance review documents to allow the employee the opportunity to provide input or review prior to departure.

Depending on the type of military duty, service members will not have reliable access to internet services or VPN enabled networks to provide input for performance reviews while serving. This is an area in which an employer can set themselves apart by supporting the service members with preparation and equitable review.

When reviewing the employee, discuss if the employee was on track to meet specific expectations in that timeframe. If the performance review is not possible to complete in advance, most service branches require Officer Evaluation Reports (OERs) or Non-Commissioned Officer Evaluation Reports (NCOERs) which is the military version of a performance review and can be provided by the employee, if available.

Communication

Ensure the employee has one point of contact for the duration of active duty. Preparing to serve on active duty (especially for long periods of time or exigent circumstances) can be particularly stressful for those who balance military and civilian lives. Offering the employee one HR contact familiar with their case can enable an easier transition pre-, during, and post military duty. In addition, providing important contact information for benefits providers, pensions, EAP, and other employer sponsorship benefits are found helpful.

Returning to Work

Once military duty is completed, the service member is required to return to work within a specific time frame depending on the length of military service.

• Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible.
• 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible
• 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service.
• Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.

Returning to work can be the most difficult part of military service as the service member finds a new normal and reintegration into home life, work life, and social life. Regardless of the type of service, there is a transition period. HR teams are particularly critical during this time by providing resources, checking in regularly, and coaching managers on a paced reintegration into work projects, deadlines, environments, etc. Offering opportunities to change schedules, work location or environment can be useful as the service member reintegrates.

Resources

For Employers

• USERRA Advisor
• SHRM Toolkit: Employing Military Members
• DOL Fact Sheet: Military Family Leave Provisions under FMLA
• Employer Support of the Guard and Reserve (ESGR)
• Office of Personnel Management (OPM) Fact Sheet: Military Leave 

For Employees

• MilitaryOneSource
• VA for Vets
• Fact Sheet: Reservists Called to Active Duty
• FAQs: Reservists Being Called to Active Duty
• Returning to Work After You Serve
• Yellow Ribbon Reintegration Program Training: Talking to your employee about deployment
• Wellness Apps for the Military Community

Contributors to this Template

• Ayanna Kelly, DEI Product Manager & Mental Health & Latinx Culture Advisor
• Jessica Lambrecht, Co-Founder & Client Operations
• Jes Osrow, SHRM-SCP, Co-Founder & DEI Specialist