Understand

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) establishes certain rights and responsibilities for uniformed service members and their civilian employers. The law's purposes are to:

• Encourage uniformed service by minimizing disadvantages to civilian careers.
• Minimize disruption to service members and their families, employers, and communities.
• Prohibit discrimination against individuals because of their service.

USERRA applies to all employers, public and private, and protects the job rights and benefits of individuals who voluntarily or involuntarily leave civilian employment to undertake military service.

Under USERRA, an employee returning from active-duty military service or training has a right to be reemployed to the same position (or a like position for which they are qualified) with the same benefits.

Qualification

To qualify for USERRA protection, individuals must:

• Provide advance notice of their military service to their employer
• Have less than five (5) years of cumulative military service during their tenure with that particular employer (certain time periods may be excluded from the cumulative five (5) years)
• Have not been separated from service with a disqualifying discharge or under other than honorable conditions
• Return to work or apply for reemployment in a timely manner

Who's eligible for reemployment?

Reemployment rights extend to persons who have been absent from a position of employment because of service in the uniformed services. Service in the uniformed services means the performance of duty on a voluntary or involuntary basis in a uniformed service, including:

• Active duty and active duty for training
• Initial duty for training
• Inactive duty training
• Full-time National Guard duty
• Absence from work for an examination to determine a person's fitness for any of the above types of duty
• Funeral honors duty performed by National Guard and Reserve members
• Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Health and Human Services, when activated for a public health emergency, and approved training to prepare for such service
   

The "uniformed services" consists of the following:

• Army, Navy, Marine Corps, Air Force and Coast Guard
• Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve and Coast Guard Reserve
• Army National Guard and Air National Guard
• Commissioned Corps of the Public Health Service
• Any other category of persons designated by the President in time of war or emergency
   

What is advance notice?

The law requires employees to provide their employers advance notice of military service, with some exceptions.

Notice may be either written or oral. It may be provided by the employee or by an appropriate officer of the branch of military in which the employee will be serving. However, no notice is required if:

• Military necessity prevents the giving of notice
• The giving of notice is otherwise impossible or unreasonable

"Military necessity" for purposes of the notice exception is defined in regulations of the Secretary of Defense as "a mission, operation, exercise or requirement that is classified, or a pending or ongoing mission, operation, exercise or requirement that may be compromised or otherwise adversely affected by public knowledge."

Duration of service

USERRA reemployment rights apply if the cumulative length of service that causes a person's absences from a position does not exceed five (5) years. Most types of services will be counted in the computation of the five-year period. 

Exceptions - Eight (8) categories of service are exempt from the five-year limitation. These include:

1. Service required beyond five (5) years to complete an initial period of obligated service
2. Service from which a person, through no fault of that person, is unable to obtain a release within the five-year limit
3. Required training from Reservists and National Guard Members
4. Ordered to involuntary service, or retained on active duty during domestic emergency or national security related situations
5. Order to service, or to remain on active duty (other than training) because of a war or national emergency declared by the President or Congress
6. Active duty (other than for training) by volunteers supporting "operational missions" for which Selected Reservists have been ordered to active duty without their consent
7. Service by members who are ordered to active duty in support of a "critical mission or requirement" of the uniformed services as determined by the Secretary involved
8. Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States

Timeframe to report back to work

To qualify for USERRA's protections, a service member must be available to return to work within certain time limits. These time limits for returning to work depend (with the exception of fitness-for-service examinations) on the duration of a person's military service.

Service of 1 to 30 Days

The person must report to their employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an 8-hour rest period.

If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible after the expiration of the 8-hour period.

Service of 31 to 180 Days

An application for reemployment must be submitted to the employer no later than 14 days after completion of a person's service. If submission of a timely application is impossible or unreasonable through no fault of the person, the application must be submitted as soon as possible on the next day when submitting the application becomes possible.

Service of 180 or More Days

An application for reemployment must be submitted to the employer no later than 90 days after completion of a person's military service.

Disability Incurred or Aggravated

The reporting or application deadlines are extended for up to two years for a person who is hospitalized or convalescing because of an injury or illness incurred or aggravated during the performance of military service.

The two-year period will be extended by the minimum time required to accommodate a circumstance beyond an individual's control that would make reporting within the two-year period impossible or unreasonable.

Unexcused Delay

A person's reemployment rights are not automatically forfeited if the person fails to report to work or to apply for reemployment within the required time limits. In such cases, the person will be subject to the employers established rules governing unexcused absences.

Application for reemployment

An application for reemployment does not need to be on any particular format. The employee may apply verbally or in writing to the pre-service employer or to an agent or representative of the employer who has apparent responsibility for receiving employment applications. The application should indicate that the employee is returning from service in the Uniformed Services and that they are seeking reemployment with the pre-service employer. The employee is permitted but not required to identify a particular reemployment position in which they are interested.

Documentation upon return

An employer has the right to request that a person who is absent for a period of service 31 days or more provides documentation showing that:

The person's application for reemployment is timely
The person has not exceeded the five-year service limitation
The person's separation from service was other than disqualifying

Unavailable documentation

If a person does not provide satisfactory documentation because it is not readily available or does not exist, the employer still must promptly reemploy the person. However, if, after reemploying the person, documentation becomes available that shows one or more of the reemployment requirements were not met, the employer may terminate the person and any rights or benefits that may have been granted.

Reemployment position

Except with respect to persons who have disability incurred in or aggravated by military service, the position into which a person is reinstated is based on the length of a person's military service. Please work with your assigned HR Business Partner to determine what position the person will be promptly reemployed into.