With recent military activity involving Iran, some employees may be called to support armed forces operations. The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to nearly all employers, regardless of size, including the federal government, and is enforced by the U.S. Department of Labor, which investigates related complaints.

Under USERRA, it is unlawful for an employer to refuse an employee's military leave of absence or to discriminate in employment or reemployment based on military service, including non-career service. USERRA extends reemployment rights to individuals who have been absent from a position of employment on account of military duty in the "uniformed services" which are defined as:

• Army, Navy, Marine Corps, Air Force, or Coast Guard
• Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve
• Army National Guard or 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

"Service" means the performance of such military duty on a commission or noncommission status, and on a voluntary or involuntary basis, in a uniformed service, including:

• Active duty
• Active duty for training
• Initial active 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 forms of duty
• Funeral honors duty by National Guard or reserve members

Under USERRA, an employee must provide advance written or verbal notice to the employer of all military duty, unless giving notice is impossible, unreasonable, or precluded by military necessity. Notice may be provided by the employee or by an appropriate officer of the branch of the military service in which the employee will be serving. The law requires "advance" notice but does not specify how far in advance notice must be given.  

Service members must, at their request, be permitted to use any vacation leave that had accrued before the beginning of their military service instead of unpaid leave. However, service members cannot be forced to use vacation time for military service.

Although the law no longer differentiates between voluntary and involuntary military service, there is a five-year cumulative service limit on the amount of military service an employee can perform and still retain reemployment rights. The five-year limit does not include inactive duty training; annual training; involuntary recall to active duty or

involuntary retention on active duty; or voluntary or involuntary active duty in support of

war, national emergency or certain operational missions, such as the current Homeland

Defense operational mission and reservist call up. They are entitled to reemployment to their jobs, without loss of seniority or pay or any benefit connected with seniority but must do the following depending on length of military service. 

• Service of 1 to 30 Days

The person must report to his or her 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 eight-hour rest period. For example, an employer cannot require a service member who returns home at 10:00 p.m. to report to work at 12:30 a.m. that night. But the employer can require the employee to report for the 6:00 a.m. shift the next morning.  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 eight-hour period.

• Fitness Exam

The time limit for reporting back to work for a person who is absent from work in order to take a fitness-for-service examination is the same as the one above for persons who are absent for 1 to 30 days. This period will apply regardless of the length of the person’s absence.

• 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.

Employee reinstatement is as follows:

• A person whose military service lasted 1 to 90 days must be “promptly reemployed” in the following order of priority:
  •  (A) In the job the person would have held had the person remained continuously employed, so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer;
  • (B) In the job in which the person was employed on the date of the commencement of the service in the uniformed services, only if the person is not qualified to perform the duties of the position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person.
  • If the employee cannot become qualified for either position described in (A) or (B) above (other than for a disability incurred in or aggravated by the military service) even after reasonable employer efforts, the person must be reemployed in a position that is the nearest approximation to the positions described above (in that order) which the person is qualified to perform, with full seniority.

The law requires employers to promptly reemploy persons returning from military service of 91 or more days in the following order of priority:

• (A) In the job the person would have held had the person remained continuously employed, or a position of like seniority status and pay so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer; or
• (B) In the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status, and pay the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person.
• If the employee cannot become qualified for either position described in (A) or (B) above: in any other position that most nearly approximates the above positions (in that order) that the employee is qualified to perform with full seniority. Section 4313 (a) (4).

Again, though, there is a five-year cumulative service limit on the amount of military service an employee can perform and still retain reemployment rights Employers must make reasonable efforts to qualify a returning service member for the reemployment position. Employers must provide refresher training, and any other training necessary to update a returning employee’s skills so that he or she has the ability to perform the essential tasks of the position.

Employers can decide whether to continue benefits or not.  However, for short leaves, they must replicate what they would do for employees who go out for jury duty, bereavement leave, and the like.