Summary
Military leave is time off for service in the uniformed services, governed in the US by the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA applies to every employer regardless of size. It requires employers to release employees for military service, including drills and annual training, with up to five years of cumulative service per employer; to reemploy them promptly on return in the job they would have held had they never left; to continue health coverage on request for up to 24 months; to credit the time for pension purposes; and not to discriminate against or discharge them because of service. Military leave is unpaid under federal law for private employers, although employees may choose to use accrued vacation and exempt employees must be paid their salary for partial weeks. Many states add protections for state National Guard duty and military spouses.
Military leave has to be recorded as protected service, and the time counted for seniority and pension. E-Monitor's attendance tracking records absence reasons separately from unexcused absence, so automated attendance rules never count service against an employee. Start free →
What USERRA Covers
The Uniformed Services Employment and Reemployment Rights Act of 1994 protects the civilian jobs of people who leave work to serve in the uniformed services. It applies to all public and private employers in the United States, with no minimum number of employees, and to US employers' operations abroad. It covers full-time, part-time, probationary and temporary employees, though a brief, non-recurrent job with no reasonable expectation of continuing may fall outside reemployment rights.
The uniformed services are the Army, Navy, Marine Corps, Air Force, Space Force and Coast Guard and their reserve components; the Army and Air National Guard when on active duty, active duty for training, inactive duty training or full-time National Guard duty under federal authority; the commissioned corps of the Public Health Service and NOAA; and certain activated disaster-response personnel. Service includes active duty, drills (inactive duty training), annual training, fitness-for-duty examinations and funeral honors duty.
The Department of Labor's Veterans' Employment and Training Service (VETS) investigates complaints, and the Department of Justice can represent service members in court. Employers must display the USERRA notice where other employee notices are posted.
Leave, Notice and the Five-Year Limit
An employee must give the employer advance notice of service, written or oral, unless military necessity prevents it or notice is otherwise impossible or unreasonable. The employer cannot require the employee to ask permission, and cannot refuse the leave or require the employee to reschedule service for the employer's convenience. It can ask the military to reschedule drills that create a genuine business hardship, but the military decides.
Reemployment rights last while cumulative service with one employer stays within five years. Several kinds of service do not count toward the limit, including regular drills and annual training, involuntary extensions, and service during war or national emergency call-ups, so in practice many reservists never reach it.
Reemployment: Deadlines and the Escalator Principle
After service, the employee must report back or apply for reemployment within a deadline that depends on how long they were away:
| Length of service | Employee must return | Protection from discharge after return |
|---|---|---|
| Less than 31 days | At the next regularly scheduled shift after safe travel home plus eight hours' rest | Protected from discrimination; no special for-cause period |
| 31 to 180 days | Apply within 14 days after service ends | May be discharged only for cause for 180 days |
| 181 days or more | Apply within 90 days after service ends | May be discharged only for cause for one year |
| Service-connected illness or injury | Deadlines extended during recovery, up to two years | As above |
The employer must reemploy the returning employee promptly, normally within two weeks of the application. The job is determined by the escalator principle: the employee returns to the position, seniority, status and pay they would have attained with reasonable certainty if they had stayed continuously employed, including promotions and raises that would have followed. If the employee needs refresher training or is no longer qualified because of a service-connected disability, the employer must make reasonable efforts to qualify them or place them in an equivalent role. Narrow defences exist where the employer's circumstances have changed so much that reemployment is impossible or unreasonable, but the employer bears the burden of proving them.
Pay, Benefits and Pension During Military Leave
Pay. USERRA does not require private employers to pay employees during military leave. Employees may choose to use accrued vacation or paid leave, but the employer cannot require them to. Many employers voluntarily pay differential pay, the gap between military pay and civilian pay, for some or all of the leave. Federal government employees receive up to 15 days of paid military leave a year.
Exempt employees. The FLSA salary basis rule still applies. An exempt employee who works any part of a week must receive the full salary for that week, so the employer cannot deduct for military leave of less than a full week, though it may offset military pay received for that week. Deductions for full weeks of leave in which no work is done are permitted. See our guide to exempt vs non-exempt employees.
Health coverage. An employee on military leave can elect to continue employer health coverage for up to 24 months. For service of less than 31 days, the employee pays only the normal employee share; for longer service, the employer may charge up to 102% of the full premium. On return, coverage must be reinstated without waiting periods or new exclusions, other than for service-connected conditions covered by the VA.
Pension. Military service counts as continuous employment for vesting and benefit accrual in employer pension and 401(k) plans. The employer must make the contributions it would have made, and the employee may make up missed elective contributions over a period of up to three times the length of service, capped at five years, with matching contributions to follow.
Other benefits. Seniority-based benefits follow the escalator principle. Non-seniority benefits, such as accrual of vacation during the leave, must be provided on the same terms as the employer gives to employees on other comparable leaves of absence.
FMLA Military Family Leave
The Family and Medical Leave Act adds two kinds of leave for family members of service members, for employers with 50 or more employees and employees meeting FMLA eligibility rules. Qualifying exigency leave provides up to 12 weeks in a 12-month period for needs arising from a spouse, child or parent's deployment to a foreign country, such as short-notice deployment, childcare arrangements, financial and legal arrangements, and rest and recuperation. Military caregiver leave provides up to 26 weeks in a single 12-month period to care for a covered service member or veteran with a serious injury or illness. Our guide to FMLA leave covers eligibility and recordkeeping.
State Military Leave Laws
USERRA sets the federal minimum, and states add to it in three main ways. Almost every state protects members of its own National Guard called to state active duty by the governor, which USERRA does not cover. Many states give public employees a set number of paid military leave days each year. And a number of states give military spouses unpaid leave around deployments; for example, Illinois's Family Military Leave Act provides up to 15 days for employers with 15 to 50 employees and up to 30 days for larger employers, and California provides up to 10 days for spouses and registered domestic partners of service members on leave from deployment at employers with 25 or more employees. Employers with staff in several states should check each state's statute, because coverage and paid-leave rules vary.
Employer Checklist
- Post the USERRA notice and include military leave in the handbook.
- Accept oral or written notice of service; do not require permission or documentation before the leave.
- Record military leave as protected leave, never as an absence, an attendance point or a resignation. See the same principle for jury duty.
- Offer health continuation and explain the cost.
- Keep track of the length of each leave to apply the right return deadline and discharge protection.
- Before reemployment, work out the escalator position: raises, promotions and seniority the employee would have received.
- Credit service for pension and make the missed employer contributions.
- For returning employees, plan training and onboarding back into systems and processes that changed during the leave. Our guide to returning from extended leave covers the reintegration side.
Related reading: Bereavement Leave, FLSA Salary Threshold 2026, Returning to Work After Maternity or Parental Leave.
Frequently Asked Questions
1. Is military leave paid?
Not under federal law for private employers. Employees may choose to use accrued vacation or paid leave, and exempt employees must receive their salary for any week in which they work. Some states require pay for public employees, and many employers voluntarily pay differential pay.
2. What is USERRA?
The Uniformed Services Employment and Reemployment Rights Act, the federal law that protects the civilian jobs, benefits and reemployment rights of people who serve in the uniformed services. It applies to all US employers regardless of size.
3. How long can an employee be on military leave?
Reemployment rights apply as long as cumulative service with one employer does not exceed five years, with several types of service, including drills, annual training and emergency call-ups, not counting toward the limit.
4. Can an employer deny military leave?
No. An employee only has to give advance notice, unless military necessity prevents it. The employer cannot require permission or force the employee to reschedule service.
5. What job must the employee return to?
The position they would have held if continuously employed, including promotions, raises and seniority they would reasonably have received, under the escalator principle.
6. Can an employer fire an employee after military leave?
Only for cause for 180 days after reemployment following 31 to 180 days of service, and for one year after 181 days or more. Discrimination because of service is prohibited at any time.
7. Do employees keep health insurance during military leave?
They can elect to continue employer coverage for up to 24 months. For leave under 31 days they pay the normal employee share; for longer leave the employer can charge up to 102% of the premium.
8. Does military leave count toward a 401(k) or pension?
Yes. Service counts for vesting and accrual, the employer must make the contributions it would have made, and employees can make up missed contributions over up to three times the length of service, capped at five years.
Protected service, recorded as protected service. E-Monitor's attendance tracking records military leave and other protected absences separately from unexcused absence, so attendance rules, points and warnings never count service against an employee. 7-day free trial, no credit card. Sign up →