Q&A: What are employers allowed to ask when employees are called to active duty?
There is a possibility that some of our employees will be called to active duty and deployed. Are there things that we can and cannot ask specific to deployment length, documentation, and return?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 prohibits an employer from denying any initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an individual on the basis of their membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. The law also prohibits an employer from retaliating against an individual by taking any adverse employment action against them because the individual has exercised their USERRA rights, testified in connection with a proceeding under USERRA, or assisted in a USERRA investigation. The law covers all public and private employers (38 USC 3801et seq.).
USERRA requires that upon returning from service, members of the armed services and its reserve components must be reinstated to their private civil jobs without loss of seniority or benefits and without any break in service for pension purposes (38 USC 4301 et seq.). An employer may provide greater rights and benefits than USERRA requires, but no employer can refuse to provide any right or benefit guaranteed by USERRA.
Under USERRA, an employee may take a maximum of 5 years’ leave for military service. Five years is the maximum cumulative length of absence for all absences with that employer, not with previous employers (38 USC 4312(a)(2)). There are limited exceptions to the 5-year limit, which may increase the maximum leave time allowed. These exceptions include service that is required beyond 5 years to complete an initial period of obligated service; the time consumed by trouble in obtaining release from service; the time for necessary training; and the time an employee is ordered to stay in active duty under certain federal laws (38 USC 4312(c)).
Employers have the right to receive advance notice of service unless military necessity or other conditions make it impossible for the employee to provide notice. The employee, or an appropriate officer of the uniformed service in which their service is to be performed, must notify the employer that the employee is to perform military service. An employee who provides notice of military leave is not asking for the employer’s permission to leave their employment. If the employee is qualified under USERRA, they are legally entitled to take such leave and to be reemployed at the end of their term of service.
When an employee lets an employer know about the need for military leave, the employer does not have the right to require documentation supporting the need for leave. Many employees will provide it; however, there may be situations in which employees do not have such documentation. Employees must provide notice, but it may be verbal or written and may be informal. It does not need to follow any particular format and the law does not provide a time frame in which employees are to provide notice. The defense department recommends that employees provide at least 30 days advance notice to their employer when it is feasible to do so.
Employers may not insist on knowing exactly when the employee will return to work, or even if the employee intends to seek reemployment after their term of service. However, the employee can be asked to furnish the employer with the approximate beginning and concluding dates of their service.
When the employee leaves their job to begin a period of service, the employee is not required to tell their employer whether they intend to seek reemployment. Even if the employee tells the employer before entering or completing uniformed service that they do not intend to seek reemployment, the employee does not forfeit the right to reemployment after completing service. The employee is not required to decide in advance of leaving the civilian employment position whether they will seek reemployment after completing uniformed service (20 CFR 1002.88).
If the employee fails to report for work or apply for reemployment on time, they do not automatically forfeit entitlement to USERRA’s reemployment and other rights and benefits. Rather, the employee becomes subject to the conduct rules, established policy, and general practices of the employer pertaining to an absence from scheduled work (20 CFR 1002.117).
Employers are permitted to request documentation for military absences of 31 days or more upon an employee’s return from leave. Employers may not require documentation before military leave.
Additionally, you should check your state law as many states have enacted laws to protect the employment status of those who serve in the armed forces.
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