Leave to perform military service
You have the responsibility to provide unpaid leave to perform military service.
Employees who are in the uniformed services may be called away to perform their duties voluntarily or involuntarily. Your support for these employees is critical to their ability to perform well, in both their civilian and military positions.
Before an employee leaves to perform military service, including training, active duty, and other responsibilities, he or she must provide you with advance notice in order to be eligible for reemployment. Federal law doesn’t set a specific timeframe for providing this notice. It can be either written or oral and you can’t specify the form of notice given. There are some exceptions for providing notice, however, such as in the case of military necessity.
You don’t have a "right of refusal" for military leave and cannot take any adverse action against the service member, or threaten to take adverse action, for leaving for service. Similarly, you may be prohibited from taking adverse action against the service member, or threatening to take adverse action, if the service member doesn’t provide notice. However, if your employee’s absence would cause a significant burden, you may contact the commander of your employee's military unit to ask if the duty could be rescheduled or performed by another service member. If this request isn’t fulfilled, you must still provide unpaid leave so your employee can perform his or her military duty, and you can’t take any adverse action against the employee.
You can’t require that a service member use vacation time to perform military service, but you must allow him or her to use any accrued vacation time to perform service. In addition, while your employee is away, the law provides for continuation of health benefits if he or she has coverage under an employer-provided plan.
It’s in your best interest as an employer to familiarize yourself with the law and contact the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) if you have questions.
Questions? We’re here to help.
We are committed to helping you understand your responsibilities as an employer. Many questions about your responsibilities towards veteran and service member employees may be answered by using the following elaws (Employment Laws Assistance for Workers and Small Businesses) Advisor:
VETS enforces USERRA and the Office of Federal Contract Compliance Programs (OFCCP) enforces the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). These agencies work together as appropriate to ensure fair treatment for America’s service members and veterans.
For additional assistance, please contact:
- VETS: 1-866-4-USA-DOL or your local VETS office
- OFCCP: 1-800-397-6251 or the OFCCP Help Desk