How Military Leave Laws Affect Employers
The U.S. military Reserve and National Guard are more than 1 million members strong. With so many Americans volunteering for Reserve forces, many employers are asking themselves: “What do I do when one of my employees is called up for training or active duty?”
While the Uniformed Services Employment and Reemployment Rights Act (USERRA) is the federal law created to protect military leave, many states have built on top of this foundation to establish additional regulations that impact employers. Here’s breakdown of state and federal-level military leave laws business and HR leaders need to know.
Federal Military Leave Laws
At its core, USERRA requires employers to guarantee unpaid leave for five years (additional time may be required if the employee’s service falls under an exception), along with continued access to health benefits (up to two years) to all employees on voluntary or involuntary federal active duty, as well as unpaid time off for training and funeral honors duty.
To qualify for USERRA and be reinstated to the workplace, employees must meet these requirements:
- The worker was employed for your organization when they volunteered or were called up for active duty
- The worker provided reasonable notice that they would be going on military leave
- The worker was on military leave for five years or less
- The worker was honorably discharged from the military
- The worker applied for reinstatement in a timely manner
When they return, employees are protected by the “escalator principle”—their pay, benefits, vacation time and seniority continue to accrue as it would if they had not been absent. *That means employers may be required to offer returning employees seniority-based promotions. *Returning employees are protected for one year and cannot be fired without good cause.
Employers should also be aware of the Family and Medical Leave Act (FMLA), which guarantees 26 weeks of leave for employees or caregivers of those on or injured during active duty.
State Military Leave Laws
When the State National Guard is called up by the president, USERRA applies. But when a governor calls up members of the State National Guard—like in the case of a natural disaster or civil unrest, or to fulfil training requirements (typically one weekend per month and two weeks per year)—employers must consult state-level laws.
States typically allow unpaid leave with full reinstatement rights, while paid leave is often guaranteed for state employees.
Here’s a breakdown of military leave laws by state:
|State||Military Leave Laws:|
|Alabama||USERRA rights apply for state active duty of more than 30 days.|
|Alaska||Unpaid leave for state active duty with reinstatement according to the escalator principle.|
|Arizona||Unpaid leave for state active duty or drills with reinstatement according to the escalator principle.|
|Arkansas||USERRA rights apply for state active duty.|
|California||Unpaid leave for state active duty with reinstatement for all full-time employees and part time employees when there is an open position. 17 days annual unpaid leave for training.
10 days unpaid leave for emergency civil air patrol operational missions (companies with 16+ employees).
|Colorado||CUnpaid leave for state active duty, with benefits continuing to accrue. 15 days annual unpaid leave for training.|
|Connecticut||USERRA rights apply for state active duty except for life insurance benefits. Employees cannot be forced to use vacation days for training.|
|Delaware||USERRA rights apply for state active duty.|
|Florida||Unpaid leave for state active duty, with no loss of benefits.
15 days unpaid leave for civil air patrol (Companies with 15+ employees).
|Georgia||Unpaid leave for state active duty and 6 months leave per 4 years for service school or training, with no loss of benefits upon reinstatement.|
|Hawaii||Unpaid leave for National Guard service.|
|Idaho||USERRA rights apply for state active duty. 15 days annual unpaid leave for training.|
|Illinois||ISERRA provides an expansion of the protections of USERRA. It expands the definition of military to include serving in a federally recognized auxiliary of the armed services, the Illinois State Guard, and a period of absence to receive medical or dental treatment for a condition sustained or aggravated by Service. ISERRA requires employees be given Performance Review ratings during their absence equal to the average of the last three years but not less than their last rating and has its own notice and posting requirements.
15 days (companies with 15 to 50 employees) or 30 days (companies with 51+ employees) unpaid leave for civil air patrol.
|Indiana||USERRA rights apply for state active duty. 15 days annual unpaid leave for training, with no loss of benefits.|
|Iowa||Unpaid leave for state active duty, with vacation, sick leave, benefits and bonuses unaffected.|
|Kansas||Unpaid leave for state active duty. 5 to 10 days unpaid leave for Kansas National Guard training.|
|Kentucky||Unpaid leave for state active duty or training, with no loss of benefits.|
|Louisiana||Unpaid leave for state active duty, with no loss of benefits.|
|Maine||Unpaid leave for state active duty. Employer pays health, dental and life insurance for employee for first 30 days and must offer the employee the opportunity to continue to pay premiums at the same rate as the employer after 30 days.|
|Maryland||USERRA rights apply for state active duty.
15 days unpaid leave for emergency civil air patrol missions (companies with 15+ employees).
|Massachusetts||USERRA rights apply for state active duty.||Michigan||Unpaid leave for state active duty.|
|Minnesota||Employees cannot be fired for state military service and employers cannot interfere with military service.|
|Mississippi||Unpaid leave for training or active duty.|
|Missouri||USERRA rights apply for state active duty.|
|Montana||Unpaid leave for state active duty, with no loss of benefits.|
|Nebraska||USERRA rights apply for state active duty.|
|Nevada||Employees may not be fired for participating in state active duty, training, maneuvers or ceremonies.|
|New Hampshire||USERRA rights apply for state active duty.|
|New Jersey||Unpaid leave for state active duty. Three months of unpaid leave per four years for training or attending Armed Forces service schools.|
|New Mexico||Unpaid leave for state service.|
|New York||Unpaid leave for state active duty, drills, training or service school.|
|North Carolina||Unpaid leave for state active duty.|
|North Dakota||Unpaid leave for involuntary state active duty. 20-day limit for voluntary service.|
|Ohio||USERRA rights apply for state active duty or training.|
|Oklahoma||USERRA rights apply for state active duty. It is a misdemeanor to prevent state guard members from attending drills, exercises and ceremonies.|
|Oregon||Unpaid leave for state active duty with no loss of benefits, sick leave or vacation days.|
|Pennsylvania||Unpaid leave for active state service. Employees’ health insurance continues for 30 days.||Rhode Island||USERRA applies for state active service. Unpaid leave for training.|
|South Carolina||Unpaid leave for state active duty.|
|South Dakota||USERRA rights apply for state active duty.|
|Tennessee||An employee may not be fired for attending Tennessee National Guard drills or training.|
|Texas||USERRA rights apply to state active duty. Unpaid leave for state training, with no loss of benefits.|
|Utah||Five years’ unpaid leave for state active duty.|
|Vermont||Unpaid leave for state active duty. 15 days annual unpaid leave for training.|
|Virginia||Five years’ unpaid leave for state active duty.|
|Washington||Unpaid leave for state active duty or training.|
|West Virginia||USERRA rights apply for state active duty.|
|Wisconsin||Unpaid leave for state active duty, with pay, seniority and status accruing as if they were continuously employed.
15 days unpaid leave for emergency civil air patrol service operations (companies with 11+ employees).
|Wyoming||Five years’ (with additional time for exceptions unpaid leave for state active duty or training. Seniority and benefits continue to accrue as if the employee was continuously employed.|
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