USERRA 5-year limit on military leave is longer than you think

Most of us know that employees who leave work to serve in the military may be gone for up to five years and still have a right to be reemployed. What may surprise you, though, is that the five years can be extended.  As our military force draws down, veterans across the country will be seeking to return to civilian jobs. Before you reject a returning veteran’s application for reemployment on the basis of exceeding the five-year limit under the Uniformed Services Employment and Reemployment Rights Act (USERRA), check your math. Here are just a few examples of time away from work that don’t count against the five-year limit:

• Service beyond five years that the military requires to complete an initial period of service. For some specialized jobs, the training is so extensive that the military requires new recruits to serve more than five years.
• Inability by the employee, through no fault of their own, to obtain orders releasing them from service within five years.
• Periodic National Guard and Reserve training, or other training time that the military certifies as necessary for the employee’s professional development or to complete skill training or retraining.
• Involuntary active duty in wartime, national emergencies up to 24 months, times of crisis, and operational missions up to 270 days. Surprise! This may mean that some or all of your employee’s time in Iraq or Afghanistan doesn’t count.
• Transition time between civilian employment and military service. This isn’t defined for the period between leaving work and joining the military, but depending on the situation, a week or more might be reasonable. For the period after military service ends, the individual must apply for reemployment within a specified period of time (up to 90 days depending on the length of service, or up to two years if the employee is recovering from a service-related injury or illness). None of this transition time counts.

So how can you be sure what time to count when an employee is away from work for military leave? First, ask for the starting and ending dates of their military service. Next, upon their return, ask for a copy of their military orders. Make a note of the statutes cited in the orders (e.g., 10 U.S.C. 12301(a)). Then compare to the USERRA regulations at 20 CFR 1002.103, which lists the types of service that are exempt from the five-year limit.

For military leave that’s OK to count against the five-year limit, the calculation is cumulative for each individual employer. So, you can add up the total amount of military leave time with your company. Once an individual exceeds the maximum, then they don’t have any special rights under USERRA but instead are subject to the same policies that apply to your other workers.

The U.S. Department of Justice is actively enforcing returning veterans’ reemployment rights, as indicated in recent press releases announcing settlements with a Lowe’s hardware store in Oregon and James J. Williams Bulk Service Transport Inc. in Washington. For more information on military leaves of absence, see our Legal Guides, “At a Glance: Veterans’ Employment Rights Under USERRA” (5375) and “Veterans’ Employment Rights Law” (774).