Nearly 1 million Americans are in the U.S. military reserve and National Guard. A significant number are also part of the civilian workforce. If they get called up for training or active duty, employers need to know how to respond. This can be a major issue for compliance, scheduling, and employee loyalty.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the primary federal law that protects military leave. In addition to USERRA, many states have additional regulations that employers need to understand. Use this article as a quick reference to learn more about the state and federal military leave laws that apply to your business.
Federal Military Leave Laws
USERRA requires employers to guarantee service members at least five years of unpaid leave for training and active duty in the military. In some cases, businesses need to provide even more time, along with continued access to health benefits. These regulations apply to all 50 states and Washington, D.C. Many states have additional laws protecting service members – more on that in a minute.
To understand USERRA, employers need to know about the escalator principle. According to the Department of Labor, “The escalator principle requires that each returning service member be reemployed in the position the person would have occupied with reasonable certainty if the person had remained continuously employed, with full seniority. The position may not necessarily be the same job the person previously held.”
If you employ service members at minimum wage, their pay will likely increase when they return from deployment. To stay compliant, make sure you keep up with changing minimum wage laws in your state.
There are plenty of exceptions to the escalator principle. For example, in many states, employers don’t have to reinstate returning service members if the business’s circumstances have changed such that doing so would be an undue hardship.
In most areas, these employees are also protected from being fired without cause for one year after they return to work. Employers should also be aware of the Family and Medical Leave Act (FMLA), which guarantees protected time off for employees or caregivers of anyone injured during active duty. Maternity leave laws are included in FMLA regulations but vary from state to state.
Employee Responsibilities
To qualify for USERRA and be reinstated to the workplace, employees must meet certain requirements. According to the Defense Civilian Personnel Advisory Service (DCPAS), these workers must:
- Give the employer advance notice of their military service whenever possible. (Certain special rules may apply in emergency situations.)
- Be on military leave for no more than five years.
- Be honorably discharged from service.
- Report back to their workplace in a timely fashion. (The specific length of time in which they must report back depends on the employer’s location and the length of the employee’s leave.)
State Military Laws
When reservists or members of the State National Guard are called up by the president, USERRA regulations apply. But sometimes, service members are called by the governor – like in the case of a natural disaster, civil unrest, or to fulfill training requirements. When that happens, employers should consult their state and local laws.
Use this table as a reference for basic information on the military leave laws in your area – but if you employ any service members, make sure you also review the original laws in detail. It’s generally a good idea to consult with a lawyer to understand your company’s rights and responsibilities in these situations. Make sure you include any relevant details in your employee handbook to avoid unwelcome surprises.
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 | Unlimited 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. Absence may not impact their seniority or vacation benefits. |
| Arkansas | USERRA rights apply for state active duty. |
| California | For members of the National Guard of any state: unpaid leave active duty with reinstatement for all full-time employees. Part-time employees must be reinstated when there is an open position. Reinstated employees cannot be terminated without cause for the following year. For members of the US armed forces reserves, Naval Militia, or National Guard: 17 days annual unpaid leave for training, drills, and similar activities. Employers may not fire employees or limit their benefits due to temporary disability that results from National Guard or Naval Militia duty. For employers with 16+ employees: 10 days unpaid leave for emergency civil air patrol operational missions. |
| Colorado | Unpaid leave for state active duty, with benefits continuing to accrue and reinstatement according to the escalator principle. 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. Reinstatement upon return from service unless the employer’s circumstances have changed so significantly that reinstatement would be an undue hardship. For employers with 15+ employees: 15 days unpaid leave for civil air patrol duty. |
| Georgia | Unpaid leave for state active duty and six months of leave per four-year period for service school or training, with no loss of benefits upon reinstatement. Reinstatement is guaranteed unless the employer’s circumstances have changed and would make reinstatement impossible or an undue hardship. |
| Hawaii | Unpaid leave for National Guard service with reinstatement per the escalator principle. Employees who are unable to do their previous jobs due to a service-related disability are reinstated to a position as similar as possible to their former position as possible, provided the employee is qualified to perform it. Reinstatement is required unless the employer’s circumstances have changed in a way that would make reinstatement impossible or an undue hardship. |
| Idaho | USERRA rights apply for in times of war, conflict, or emergency, with reinstatement per the escalator principle. If a service-related disability renders them unable to return to that position, they are entitled to a similar position in terms of pay, seniority, etc. Employees receive 15 days annual unpaid leave for training and must give 90 days’ notice of training dates. |
| 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. For employers with 15-50 employees: service members receive up to 15 days unpaid leave for civil air patrol. For employers with 51+ employees: service members receive up to 30 days unpaid leave for civil air patrol. Returning employees must be reinstated per the escalator principle. |
| Indiana | USERRA rights apply for state active duty. 15 days annual unpaid leave for training, with no loss of benefits. Employees must give 90 days’ notice of departure and return and must provide proof of completion of training. |
| Iowa | Unpaid leave for state active duty, with vacation, sick leave, benefits, and bonuses unaffected. When they return, employees provide evidence that they completed service and are still qualified to perform the same work. |
| Kansas | Unpaid leave for state active duty. Reinstatement is not required if the employer’s circumstances has changed such that it would be impossible or unreasonable. Five to 10 days unpaid leave for Kansas National Guard training. Failure to give service members time off under these regulations is a misdemeanor. |
| Kentucky | Unpaid leave for state active duty or training, with no loss of benefits. Members of the Kentucky National Guard receive unlimited unpaid leave for training or active duty. Reinstatement based on the escalator principle. |
| Louisiana | Unpaid leave for state active duty, with no loss of benefits. Reinstatement according to the escalator principle. |
| 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. Employers must give employees between 24 hours and 90 days to report to work after they arrive home, depending on their length of service. |
| Maryland | USERRA rights apply for state active duty. For employers with 15+ employees: at least of leave each year to respond to emergency civil air patrol missions. Employees must give as much notice as possible and must send updates to their employer during any missions. Employees are entitled to reinstatement upon their return. |
| Massachusetts | USERRA rights apply for state active duty. The details of reinstatement depend on the length of service. In most cases, reinstatement is not required after military leave that exceeds five years. |
| Michigan | Unpaid leave for state active duty. The details of reinstatement depend on the length of service. In most cases, reinstatement is not required after military leave that exceeds five years. |
| Minnesota | Employees cannot be fired for military service. Employers cannot interfere with military service. |
| Mississippi | Unpaid leave for training or active duty. Reinstatement to their former position or a similar position is guaranteed. Employees must provide evidence they completed training. |
| Missouri | USERRA rights apply for state active duty. |
| Montana | All available USERRA military leave rights apply. Unpaid leave for state active duty, with no loss of benefits. Reinstatement based on the escalator principle. |
| 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. Reinstatement per the escalator principle unless the employer’s circumstances have changed in a way that would make it unreasonable. Three months of unpaid leave per four years for training or attending Armed Forces service schools. Employees are required to apply for reinstatement within 10 days of completing training. |
| New Mexico | Unpaid leave for military service, or for up to one year of hospitalization following service. Reinstatement per the escalator principle unless the employer’s circumstances have changed in a way that would make it unreasonable. Employees request reinstatement within 90 days of completing their service or being released from hospitalization. |
| New York | Unpaid leave for state active duty, drills, training, or service school. Reinstatement unless the employer’s circumstances have changed in a way that would make it unreasonable. Reinstatement per the escalator principle unless the employer’s circumstances have changed in a way that would make it unreasonable. If employees are no longer able to do their previous jobs, they must be reinstated in a position with commensurate seniority, salary, and status. |
| 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 military leave 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. Returning employees entitled to reinstatement per the escalator principle with no loss of sick leave or vacation days. Employees must report for work within a week of release from service. |
| Pennsylvania | Unpaid leave for active state service. Employees’ health insurance continues for 30 days. Reinstatement per the escalator principle unless the employer’s circumstances have changed in a way that would make it unreasonable. Reservists and employees who enlist or are drafted must return to work within 90 days of completing service. Members of the state National Guard must return within 30 days of completing service. |
| Rhode Island | USERRA military leave applies for state active service. Unpaid leave for training. Reinstatement per the escalator principle unless the employer’s circumstances have changed in a way that would make it unreasonable. Employees must request reinstatement within 40 days of completing service. |
| South Carolina | Unpaid leave for state active duty. After honorable discharge, reinstatement per the escalator principle unless the employer’s circumstances have changed in a way that would make it unreasonable. Employees apply for reinstatement in writing within five days of release from service or service-related hospitalization. |
| South Dakota | USERRA military leave 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. Reinstatement per the escalator principle. |
| Vermont | Unpaid leave for state active duty. 15 days annual unpaid leave for training. Reinstatement per the escalator principle. |
| Virginia | Five years’ unpaid leave for state active duty. For employees whose leave does not exceed five years, reinstatement per the escalator principle unless the employer’s circumstances have changed in a way that would make it unreasonable. Depending on the length of their leave, employees must apply for reinstatement within either 14 or 90 days of returning. |
| Washington | Unpaid leave for state active duty or training. |
| West Virginia | USERRA military leave 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. For employees whose leave does not exceed five years, reinstatement per the escalator principle unless the employer’s circumstances have changed in a way that would make it unreasonable. Employees must return to work within 90 days of release from service. For employers with 11+ employees: 15 days unpaid leave for emergency civil air patrol service operations. |
| Wyoming | Five years’ unpaid leave for state active duty or training. Seniority and benefits continue to accrue as if the employee was continuously employed. Employees may not be terminated without cause for one year after they return to work. |
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