{"id":6835,"date":"2024-07-16T17:13:00","date_gmt":"2024-07-16T17:13:00","guid":{"rendered":"https:\/\/www.brightmine.com\/us\/?post_type=resources&p=6835"},"modified":"2026-02-03T05:22:29","modified_gmt":"2026-02-03T10:22:29","slug":"userra-ask-our-experts","status":"publish","type":"resources","link":"https:\/\/www.brightmine.com\/us\/resources\/hr-compliance\/employee-leaves\/userra-ask-our-experts\/","title":{"rendered":"Ask Our Experts: Military leave"},"content":{"rendered":"\n
\n
\n
\n
\n

by Helena Oroz<\/strong>, Senior Legal Editor at Brightmine<\/p>\n<\/div>\n\n\n\n

Just because an employment law has been around for a while doesn’t mean employers no longer have compliance<\/a> questions. Case in point: USERRA, the Uniformed Services Employment and Reemployment Rights Act, was enacted in 1994 \u2014 30 years ago this year! But Ask Our Experts receives many questions concerning employee rights and employer obligations under this law.<\/p>\n\n\n\n

It’s five years\u2026right?<\/h2>\n\n\n\n
\n
\n

Q<\/strong>: I thought USERRA protected an employee’s right to reinstatement after military service for only up to five years – why am I seeing something about “exceptions” in an employee’s military orders?<\/p>\n<\/div>\n\n\n\n

\n

A<\/strong>: Because there are exceptions!<\/p>\n\n\n\n

The general rule under USERRA is that a person is entitled to reemployment with their employer for up to five cumulative years of military service.<\/p>\n\n\n\n

\n

For more information about categories of service excluded from USERRA’s five-year service limitation, check out the Guide to the Uniformed Services Employment and Reemployment Rights Act<\/a> from the U.S. Department of Labor.<\/p>\n<\/div>\n\n\n\n

However, certain categories of military service<\/a> don’t count toward that five-year limitation, like the two-week annual training sessions and monthly weekend drills mandated by statute for Reservists and National Guard members, for example.<\/p>\n\n\n\n

An employer might see language in an employee’s military orders stating that their military service is “exempt from the 5-year cumulative service limitation on reemployment rights under Title 38.” But even if an employer doesn’t see an employee’s orders, it should understand that there are exceptions to the five-year limitation and be wary of denying reinstatement on this basis.<\/p>\n<\/div>\n<\/div>\n\n\n\n

Do we have to pay for military leave?<\/h2>\n\n\n\n
\n
\n

Q<\/strong>: I thought military leave was unpaid, but I’ve read some different things. Do we have to pay for military leave?<\/p>\n<\/div>\n\n\n\n

\n

A<\/strong>: It depends! USERRA doesn’t explicitly require employers to provide paid leave \u2014 but what you do for military leave may depend on what you do for other types of “comparable” leave.<\/p>\n\n\n\n

The USERRA rules state that if the “non-seniority benefits” to which employees on leave are entitled vary depending on the type of leave, then an employee on military leave “must be given the most favorable treatment accorded to any comparable form of leave.”<\/p>\n\n\n\n

“Non-seniority benefits” are benefits that aren’t tied to how long an employee works for an employer. For example, an employer might provide some types of leaves that are paid, and others that are unpaid. If the types of paid leave an employer provides could be considered “comparable” to an employee’s military leave, then an employer may have to provide pay during military leave, too.<\/p>\n\n\n\n

So, what does “comparable” mean? There’s no specific definition, only factors to consider when determining whether two types of leave are comparable:<\/p>\n\n\n\n