Uniformed Services Employment and Reemployment Rights Act: What to Know

For employees who handle HR, managing military leave involves much more than tracking an employee's time away. The Uniformed Services Employment and Reemployment Rights Act (USERRA) establishes important requirements for employers related to military leave, reemployment, benefits, seniority, training, and employment discrimination.

The law is designed to ensure that service members do not lose career opportunities because they leave civilian employment to perform military service. For HR staff, understanding USERRA is essential to protecting both employees and the organization.

What Is USERRA?

USERRA is a federal law that protects both the employment and reemployment rights of workers who leave their civilian jobs to serve in the uniformed services.

Administered by the U.S. Department of Labor's Veterans' Employment and Training Service (VETS), USERRA applies broadly to public and private employers, regardless of size. It protects past and present members of the uniformed services, as well as individuals with future military obligations.

Its core principle is simple: Employees should not be disadvantaged in their civilian employment because they undertake military service.

Who Is Covered by USERRA?

USERRA covers individuals serving in the Army, Navy, Marine Corps, Air Force, Coast Guard, Space Force, Reserves, and National Guard. Certain other categories of uniformed service members may also be protected.

Qualifying service is not limited to long-term deployments. It can include certain periods of training, emergency service, and other forms of military duty, including certain service involving the National Disaster Medical System.

You should always review the employee's orders and specific circumstances rather than assuming that a short absence does not qualify.

What Are the Requirements for Reemployment?

Generally, four conditions must be satisfied for USERRA reemployment rights to apply:

1. The employee provided advance notice of the service, unless military necessity or circumstances made notice impossible or unreasonable.
2. The employee's cumulative qualifying service falls within USERRA's five-year limit with that particular employer (note there are several categories of exceptions to the five-year limit).
3. The employee's separation from service was under qualifying conditions.
4. The employee returned to work or applied for reemployment within the applicable deadline.

Evaluate each requirement individually before determining whether an employee is entitled to reemployment.

Understanding the Five-Year Service Limit

USERRA generally limits qualifying service with a particular employer to five cumulative years; however, there are a few exceptions.

Certain service may not count toward the limit, including some initial periods of obligated service, involuntary service, service during a war or national emergency, and qualifying Reserve or National Guard training.

Therefore, you should not automatically deny reemployment rights simply because an employee has been away for more than five years. Review the employee's orders and circumstances before making a determination.

The Escalator Principle

One of the most important USERRA concepts to keep in mind is the escalator principle. In short, a returning employee generally must be reemployed in the position they would have attained, with reasonable certainty, had they remained continuously employed.

That may mean more than simply returning the employee to their former job. Depending on the circumstances, the employee may be entitled to the same seniority, status, pay, and other rights and benefits they would have received had they not left for service.

For example, if an employee would reasonably have received a promotion while away, you may need to consider that position when determining reemployment.

Know the Return-to-Work Deadlines

You will need to carefully track when returning service members must report or apply for reemployment, as it depends on the number of days required they be away for their service.

• Service of 1–30 days: The employee generally reports for the next regularly scheduled work period, after allowing for safe travel home and an eight-hour rest period.
• Service of 31–180 days: The employee generally must apply for reemployment within 14 days.
• Service of 181 days or more: The employee generally must apply within 90 days.
• Service-related illness or injury: Special rules may allow up to two years to return or apply, depending on the circumstances.

Be sure to document and track these deadlines in the employee's file.

Training and Retraining May Be Required

Returning employees may not always be immediately qualified for the position they are entitled to receive. However, USERRA requires employers to make reasonable efforts to help qualifying employees become qualified.

This might include training service, retraining, or other reasonable steps.

For example, an employee may return to a workplace that has adopted new technology or substantially changed its processes. HR should consider whether appropriate training can enable the employee to perform service in the position rather than assuming that the employee is no longer qualified.

Accommodating Service-Connected Disabilities

In some cases, a returning service member might return with an illness or disability related to their military service. USERRA requires employers to make reasonable efforts to help these employees become qualified for reemployment. (The ADA and applicable state laws may also require reasonable accommodation.)

You may need to consider modified duties, schedules, equipment, or other accommodations through an interactive process. The objective is to enable returning service members to resume productive employment without being disadvantaged because of their military service.

Employee Benefits Protection for USERRA Workers

USERRA provides important health insurance protection for employees who leave work for qualifying service. Your HR and benefits teams should coordinate eligibility, employee contributions, dependents, payroll deductions, and reinstatement when the employee returns.

Keep in mind that the employee's military leave should trigger a consistent benefits process rather than an improvised decision.

Health Insurance Protection

For service lasting 30 days or less, employer-sponsored coverage generally continues under USERRA as though the employee had remained employed.

When service lasts more than 30 days, an employee may generally elect to continue employer sponsored health care for up to 24 months. The employee may be required to pay up to 102% of the applicable premium.

Retirement and Pension Benefits

USERRA can also affect retirement and pension plan coverage.

For qualifying employees, military service is generally treated as continuous employment for purposes of determining eligibility and vesting, and applicable benefits may need to be restored as though the employee had not left for service.

Depending on the retirement plan, returning employees may also have the right to make up missed employee contributions, with corresponding employer contributions when required.

Your HR team should work with the company's retirement plan administrator to ensure that benefits are properly restored and that applicable deadlines are met.

Employment Discrimination Is Strictly Prohibited

USERRA prohibits employment discrimination based on military service or obligations. In general, this prohibits employers from denying initial employment, promotion, reemployment, benefits, or other employment opportunities because of an individual's past, present, or future military service.

This means hiring managers should not make assumptions about a candidate's commitment or availability because they are a member of the National Guard or Reserves.

Military obligations should not negatively influence hiring, performance evaluations, promotions, compensation, scheduling, discipline, or termination decisions.

Retaliation and Post-Reemployment Protection

USERRA also protects employees who exercise their rights or assist another person with a USERRA claim.

Additional protections apply after reemployment. Generally, employers cannot terminate qualifying returning employees without cause for six months following service of 31–180 days or for one year following service of more than 180 days.

You should carefully document legitimate performance or business reasons for any adverse action involving a recently returning employee.

Don't Treat Returning Employees Like New Hires

A common HR mistake is treating an employee returning from military service as though they are starting over. USERRA's reemployment rights can require restoration of seniority, status, pay, benefits, and other rights the employee would have accumulated had they remained employed.

Be cautious about restarting probationary periods, resetting seniority dates, or eliminating previously earned benefits. The goal is to place the employee in the position they would reasonably have reached without the interruption for military duty.

Build a Consistent USERRA Process

The best way for HR teams to manage USERRA is to establish a standardized process.

Before service:

• Document the employee's notice and expected dates.
• Review the type of service and five-year limit.
• Explain applicable benefits.
• Provide required USERRA information.
• Record the employee's current position, compensation, and seniority.

During service:

• Track benefits and employee contributions.
• Maintain appropriate communication.
• Document organizational changes that may affect the employee.
• Ensure military status does not influence employment decisions.

Before and after return:

• Confirm the applicable return deadline.
• Determine the proper reemployment position under the escalator principle.
• Review seniority, compensation, and benefits.
• Identify training or accommodation needs.
• Coordinate health and retirement benefits.
• Document the employee's reinstatement.

Train Managers on USERRA

Managing USERRA compliance is not just for HR. Managers often make decisions that can unintentionally create legal risk when they haven't been properly trained.

Training should emphasize that employees who are performing military service is a protected employment issue that requires HR involvement. Military service should never influence decisions involving hiring, promotions, raises, performance reviews, discipline, layoffs, or termination.

The Department of Labor provides USERRA training and resources to help HR professionals and managers understand their obligations.

USERRA Resources and Enforcement

The DOL's Veterans' Employment and Training Service can investigate USERRA complaints and provide compliance assistance.

Your HR team can also use the DOL's interactive online USERRA Advisor or contact the customer service center to review questions involving eligibility, reemployment, benefits, and employer obligations.

Federal employees may have additional procedures involving the Merit Systems Protection Board or Special Counsel, so federal HR teams should review the rules applicable to their workforce.

Key Takeaways for HR Teams

USERRA compliance is ultimately about ensuring that employees can serve without sacrificing their careers.

If you work in HR, remember the following:

• USERRA applies broadly to employers and uniformed services.
• Military leave can include training and other qualifying service.
• The five-year limit has important exceptions.
• The escalator principle may require more than restoration of an employee's old position.
• Returning employees may be entitled to the same seniority, status, pay, and applicable benefits they would have received.
• Employers may need to provide training or retraining.
• USERRA provides significant health insurance protection and retirement benefit rights.
• USERRA prohibits discrimination and retaliation based on military service.
• HR should document military leave, benefits, reemployment, and employment decisions.
• Managers should receive appropriate USERRA training.
• Complicated cases should be reviewed with qualified legal counsel.

For HR teams, the safest approach is to treat USERRA as a structured compliance process, not an exception to normal HR operations. Know the requirements, document decisions, coordinate benefits, train managers, and carefully evaluate every employee's employment and reemployment rights.

Because USERRA requirements are fact-specific and may interact with the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), state employment laws, benefits requirements, and other federal regulations, contact your certified HR expert for guidance.

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Sources:
dol.gov
osc.gov