Military leave reminders: 8 things employers should be thinking about right now

Given the increased American military action in the Middle East, it’s time for employers to check that the processes for employees to take and return from military leave are sound. This means you!

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) covers virtually all employers and provides broad protections to employees who serve. USERRA is only the starting point – state laws and other leave laws can layer on additional obligations. Keep in mind the following eight important points to help ensure compliance with employees’ military leave rights.

1. Expect more requests — and you can’t say no

Under USERRA, employees do not need to ask for or get their employer’s permission to take military leave. Even when an employee’s extended absence will significantly impact operations, the employer cannot deny the leave request.

Key points:

• USERRA applies regardless of employer size.
• Executive, managerial, professional and part-time employees are all covered.
• Business impact is not a valid reason to deny military leave.
• Resistance or emotional responses to leave requests may trigger a USERRA claim.

2. Advance notice is nice — but not always possible

Guard and Reserve members may be called to duty with limited notice. While USERRA requires employees to give their employer advance notice, it does not specify how far in advance. The Department of Defense strongly recommends at least 30 days’ notice if feasible, but advance notice is not a condition of USERRA protection. Notice is not required when it is impossible, unreasonable or prevented by military necessity. Notice must be accepted even if it is provided informally or only verbally or provided by someone other than the employee.

Key points:

• You can request confirmation of the need for leave (e.g., military orders) but can’t deny leave if the employee does not or cannot provide it.
• Avoid rigid notice policies that conflict with USERRA flexibility.

3. Poor pay practices are pricey

USERRA generally does not require paid military leave, but employers can violate the law if military leave is treated less favorably than comparable non-military leave (e.g., employer provides unpaid military leave but pays employees on comparable leaves).

Cautionary tale: In December 2025, Southwest Airlines settled a class action lawsuit to the tune of $18.5 million. The suit claimed the airline violated USERRA by not paying employees on short-term military leave (up to 14 days), but paying for other short-term leaves (jury duty, bereavement and sick leave).

Key points:

• Compare military leave to other leaves using factors such as duration, purpose and employees’ ability to choose when to take leave.
• Align pay practices or document defensible distinctions.

4. Continue benefits and other rights during the leave

Employees have certain rights related to benefits while they are on military leave. Errors here often aren’t visible immediately and can create downstream exposure during audits or disputes.

Key points:

• Allow employees to continue existing health care coverage.
• Include the period of military leave for purposes of retirement plan credit and seniority-based benefits.
• Track vacation and sick leave accrual, if they accrue during comparable leaves.
• Keep records of raises and bonuses the employee would be entitled to if they were working.
• Ensure benefits, payroll and HRIS teams are aligned on how military leave is coded and tracked.

5. Get reemployment rights right

USERRA sets out detailed employer obligations for returning service members who meet the reinstatement eligibility factors:

• Cumulative length of military service of less than five years;
• Honorable military discharge; and
• Timely return or application to return to work.

Timeframes to return:

• 1-30 days of leave: report to work by their next regularly scheduled workday
• 31-180 days of leave: apply within 14 days of completing service
• More than 180 days of leave: apply within 90 days
• Service-related injury: timeframes extended up to two years

Employers must reinstate employees:

• Promptly (generally within two weeks); and
• To the position they would have attained had they not taken leave (known as the “escalator position,” which can go up or down), or to a position of like seniority, status and pay in some situations.

USERRA can overcome at-will employment status, giving returning employees just cause protection. Employees returning from more than 30 days of leave cannot be terminated without cause for 180 days or one year, depending on the length of the leave.

Key points:

• Pay attention to timing rules for employees’ return.
• Reinstatement back to the position held before taking leave is not automatic (though it is an option under certain circumstances).
• Make a reasonable effort to help the employee qualify for the escalator position.
• If the escalator position goes down (e.g., a demotion) or if circumstances have changed, making reinstatement impossible or unreasonable (e.g., layoffs), ensure the legitimate business needs are well-documented and legally vetted.

6. But wait, there’s more (at the state level)

Many states provide additional protections beyond USERRA, including:

• Expanded service coverage;
• Enhanced reinstatement or benefit rights; and
• Paid leave requirements.

USERRA is the floor, not the ceiling. Where a state military leave law provides additional rights, the employee must receive the most generous protection available.

Key points:

• Identify applicable state military leave laws.
• Confirm whether state pay, notice or benefit rules apply.
• Avoid applying uniform national policies without state-law overlays.
• Run leaves concurrently where permitted, and ensure leave entitlements are not unlawfully reduced.

7. Don’t forget about an employee’s family members

Employees who aren’t service members may be entitled to military-related leave for covered family members who serve. The federal Family and Medical Leave Act (FMLA) and many state counterparts allow employees to take leave for:

• Qualifying exigencies related to a family member’s covered active duty (e.g., childcare, financial and/or legal arrangements, military events); and
• Caring for a covered service member or veteran with a serious injury or illness.

Key points:

• USERRA leave generally cannot be required to run concurrently with FMLA leave.
• State-provided family military leave may run concurrently with FMLA leave where eligibility criteria are met.
• Reemployed service members receive credit toward FMLA eligibility for time spent in service.
• Identify when multiple leave laws apply to an employee’s request.

8. Culture, messaging and trust matter

Management plays an important role in creating a supportive work environment for service members. Handling an employee’s military obligations poorly can lead to USERRA claims and morale issues.

Key points:

• Keep emotions out of discussions about an employee’s leave, regardless of how it affects the business.
• Do not discourage leave or treat service members differently.
• Reinforce positive messaging around service and compliance.

HR takeaways

Take this time to find and fill gaps in your organization’s protections for military service members.

Look at all levels of your organization. Refresh manager training on how to respond (and how not to respond) to leave requests. Prepare HR, managers and payroll to smoothly and correctly handle an employee’s leave from beginning to end, and then after they return to work. Remind employees of their rights to take leave and their obligations for reinstatement.

At the same time, review policies and procedures. Update military leave policies to reflect current law, including the consistent application of state-law overlays and alignment of paid military leave with comparable leave types. Audit reemployment and benefit-related workflows for accuracy and timeliness.

Organizations also benefit from planning for the operational impact of extended employee absences. Cross-training, documenting core work processes and reinforcing support structures help teams weather longer deployments more smoothly.

Taken together, these steps not only reduce compliance risk but also demonstrate a genuine commitment to employees who serve.