From activation to reinstatement: Military leave obligations explained

Amid rising global tensions and domestic emergencies, the federal government is increasingly activating employees in the uniformed services. As a result, employers must navigate a growing surge of employee requests for military leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994, as recently amended by the Civilian Reservist Emergency Workforce (CREW) Act of 2022 and the Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act of 2025 (Dole Act).

This article outlines private employer responsibilities under USERRA, highlights recent changes to civilian job protections under the law, and offers practical guidance for employers navigating this issue.

USERRA: The federal framework

USERRA is the primary federal law governing military leave and applies to all public and private employers. The Act protects full-time, part-time, and probationary employees absent because of service in the uniformed services, including the armed forces, National Guard, reserves, and certain disaster response roles. Covered service may include active duty, training, emergency activations, fitness exams, and funeral honors.

USERRA guarantees reemployment with the same status, pay, and benefits the employee would have earned without the absence. It also prohibits discrimination and retaliation based on military service.

Employers must also comply with: (1) applicable state laws, which in some instances impose additional requirements or offer broader protections; and (2) the Family and Medical Leave Act (FMLA), which complements USERRA by providing up to 26 weeks of job-protected leave for family members to care for a service member with a serious injury or illness, and 12 weeks for “qualifying exigencies” like deployment-related events.

Recent expansions: CREW Act and Dole Act

As employers navigate military leave requests, you must also understand that two recent federal laws have significantly expanded the scope of USERRA protections for service members.

The CREW Act (2022) extended coverage to Federal Emergency Management Agency (FEMA) reservists deployed for federally declared disasters, including during training.

The Dole Act (2025) introduced major amendments, allowing service members to challenge any retaliatory action—not just adverse employment decisions. It also mandates attorneys’ fees awards, authorizes injunctive relief, imposes a 3% prejudgment interest rate, and sets a $50,000 minimum for liquidated damages in knowing violations. The Dole Act clarified that USERRA protects all service members by replacing the phrase “encourage noncareer service” with “encourage service” in the law’s stated purpose.

These updates expand protections and emphasize the need for employers to review and update leave policies, ensure training is current, and confirm no covered employees are excluded from job rights or benefits.

Key employer obligations

Employee eligibility

Employees qualify for USERRA protections if they:

• Provide written or oral advance notice of military service;
• Serve under honorable conditions;
• Accrue no more than five years of cumulative military leave with the employer; and
• Return to work or apply for reemployment within the required time frame.

You can calculate the time frame for employees to return to work or apply for reemployment as follows:

• Fewer than 31 days: Report to work at the start of the next regular shift following eight hours of rest.
• 31 to 180 days: Apply for reemployment within 14 days.
• More than 180 days: Apply for reemployment within 90 days.

Reemployment rights

USERRA requires qualified service members to be reinstated to the position they would have attained if continuously employed—the “escalator position.” This may involve a promotion, demotion, transfer, layoff, or even termination, depending on what would have occurred during their absence.

In practice, the employee steps back onto the “employment escalator” with the same seniority, status, pay, rights, and benefits they would have earned. Reemployment may require bumping another employee, retraining the service member, or placing them in a comparable position if the escalator position no longer exists.

Reemployment varies by length of service:

• 90 days or less: Reinstate the employee to the escalator position. If they are unqualified and cannot be qualified with reasonable training, place them in the prior or a comparable position.
• More than 90 days: Reinstate them to the escalator position or an equivalent role. If they are unqualified and cannot be qualified with reasonable training, place them in the prior or a comparable position.

Employers must make reasonable efforts to train or retrain returning service members, unless doing so would impose an undue hardship. This may include a refresher or updated skills training to address changes in technology or business operations.

Compensation

Military leave is generally unpaid, though employers may voluntarily offer full or partial differential pay. You must allow—but not require—use of accrued paid time off.

Exempt employees under the Fair Labor Standards Act (FLSA) must be paid their full salary for any week in which they perform work. No pay is required for full weeks with no work performed.

Benefits during leave

Employees must receive the same non-seniority-based benefits as employees on comparable non-military leaves. If employees on comparable non-military leaves accrue vacation or receive holiday pay, military employees must as well.

Affirmative defenses

Even if a service member meets the requirements for reemployment, an employer may lawfully deny reinstatement by establishing statutory affirmative defenses:

• Changed circumstances: Reemployment is impossible or unreasonable because of significant changes in the employer’s situation.
• Undue hardship: The employer is excused from training or accommodating a service-related disability if it would impose an undue hardship. Potential obligations under the Americans with Disabilities Act (ADA) may still apply.
• Brief employment: The employee’s preservice position was short-term with no reasonable expectation of ongoing employment.

Temporary replacements

You may hire a temporary replacement, but this must not interfere with the service member’s reemployment rights.

To comply:

• Designate the replacement as temporary and communicate that the position ends when the service member returns;
• Do not use the replacement’s presence to deny reemployment; and
• Reinstate the employee promptly upon timely application.

Clearly documenting the temporary nature of the replacement and communicating with all parties reduces risk.

Conclusion

Military leave can be complex, but USERRA provides a clear framework to protect service members and guide employer responsibilities. Understanding these obligations helps you reduce risk and support service members.

To ensure compliance, you should understand the recent expansions to USERRA, how federal protections intersect with state military leave requirements, and how USERRA aligns with job protections under the FMLA. You should also review and update your policies, train managers and HR personnel, document military-related employment decisions, and monitor ongoing legal developments.

Emily E. Brodner, J.D., associate, and Juliet S. Burgess, J.D., founding partner, are attorneys at Burgess Law Group specializing in labor and employment law, intellectual property, and commercial litigation.