Military Leave – No Notice – Job Protection?

Question

We have an employee who left unexpectedly three-quarters of the way into his shift, stating he was leaving because he was going on military leave for one year. We've not been able to reach him to get further details, and we haven't received any sort of formal documentation backing up his claim. Are we required to hold his job for him for this year? If so, should we have received some sort of formal documentation backing up his claim?

Answer

Under the federal Uniformed Services and Reemployment Rights Act (USERRA), if an employee in the military needs time off from work for training, reserve duty or any other active duty, he or she is entitled to take up to a maximum of five years of job-protected leave for this purpose, cumulatively, even if the leave is taken in intermittent intervals. Under USERRA, an employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation, and an employee's rights under the Act apply without regard for his or her tenure with the employer.

However, in order for an employee to enjoy the protection of USERRA, he or she must meet all five of the following criteria:

he/she must be absent from a civilian job on account of service in the uniformed services;

he/she must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise was impossible or unreasonable to provide;

the cumulative period of military service with the employer must not exceed five years;

he/she must not have been released from military service under dishonorable or other punitive conditions; and

he/she must report back to the civilian job in a timely manner or submit a timely application for reemployment, unless timely reporting back or application is impossible or unreasonable.

In connection with item number 2 above, federal Regulations expressly state that the Department of Defense "recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when feasible, based upon the time the Service member receives confirmation of upcoming uniformed service duty." For the purpose of determining when providing advance notice of uniformed service is NOT required, the term "military necessity" is defined as "a mission, operation, exercise, or requirement that is classified, or a pending or ongoing mission, operation, exercise, or requirement that may be compromised or otherwise adversely affected by public knowledge is sufficient justification for not providing advance notice to an employer." For the full text of the applicable federal Regulations, please see 32 CFR 104.3 and 104.6(a)(2)(iii)(A)(3).

The question indicates that the subject employee left mid-shift for a one-year military leave of absence, with no prior notice nor subsequent communication with the employer. Unless giving the employer advance notice of the need to commence military leave (in the middle of a shift) was truly "precluded by military necessity [defined above] or otherwise impossible or unreasonable," the employee should have provided notification to the employer ahead of time, and arguably is not entitled to the protection of USERRA if he did not. If the employee is unable to support his failure to give notice to the employer with evidence of "military necessity," impossibility or unreasonableness, to our knowledge the employer can treat his actions in having left mid-shift and failing to communicate further with the employer as it would if any other employee did the same.

If, however, the employer ascertains information to support one of the exceptions where failing to notify the employer in advance of military leave exists, then the employer should ensure it protects the employee's rights under the Act. In other words, to the extent the employer learns that in fact military necessity rendered the employee unable to provide advance notification of leave to the employer, or otherwise it was truly unreasonable or impossible for him to do so, then he would be entitled to job-protected military leave under USERRA of up to five years. He would further be entitled to reemployment upon his return, in the job that he would have attained had he not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. When military leave is 181 days or more as would be the case where leave is for one year, however, note that the employee must apply for reemployment no later than 90 days after completion of his military service.

For additional information on USERRA obligations, please see the Fact Sheet 3 - Job Rights for Veterans and Reserve Component Members and the resources available at the US Dept. of Labor regarding Reemployment and Nondiscrimination Rights for Uniformed Services Members.

Want to know more? Listen to our podcast on Military Leave (USERRA).

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Published Date:December 17, 2019

Categories: HR Question of the Month