Heightened military engagement: Unpacking employers’ USERRA responsibilities
The recent U.S. military engagement in the Middle East, as well as significant domestic deployments in multiple large cities in 2025 and 2026, underscores the increasing reliance on National Guard and reserve forces. Recruitment trends indicate an expanded operational role, with nearly 50,000 National Guard enlistees added in 2025. At this time, understanding employers’ compliance obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA) is more important than ever.
Strict prohibition on discrimination, retaliation
USERRA guarantees military service members’ rights to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other employment protections.
USERRA prohibits discrimination or retaliation based on:
· Past military service;
· Current military obligations;
· Potential or future service; or
· Filing a USERRA complaint or exercising a USERRA right.
With increased activations of National Guard and reserve forces more likely under the current conditions, employers should be more mindful of scheduling, promotion decisions, attendance actions, and workplace remarks concerning military leave.
Applies broadly, without advance written notice requirements
USERRA applies to all employers, regardless of size, and protects full-time, part-time, temporary, and probationary employees who perform duty in the U.S. uniformed services, including:
· The Army, Navy, Marine Corps, Space Force, Air Force, and Coast Guard;
· The Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, and Coast Guard Reserve;
· The Commissioned Corps of the Public Health Service; and
· Other categories of persons designated by the president during a time of war or national emergency.
Members of the Army National Guard and Air National Guard are covered when they’re on full-time National Guard duty, are engaged in active or inactive duty for training, or have been activated by the president.
National Guard service on behalf of a state, commonwealth, or territory isn’t protected by USERRA, although it’s normally protected by state laws, which provide similar protections to USERRA’s.
USERRA protections further extend to Federal Emergency Management Agency (FEMA) reservists who deploy to major disaster sites.
Importantly, USERRA doesn’t require employees to provide advance written notice to their employers of the need for leave. In the event of emergency mobilization, employees may have little or no time to notify their employers. As long as the employee or an appropriate military authority provides some form of notice, the employer is obligated to comply.
Protected military leave
When employees are called to active duty, their employer must allow them to take military leave for the entire period of required service. This applies equally to both involuntary and voluntary service.
Key points include the following:
· There are no minimum hours worked or tenure requirements.
· Leave can last up to five cumulative years with the same employer. (There are many exceptions for certain types of duty, including involuntary activations.)
· Employers can’t require employees to use paid time off (although employees may elect to do so).
Pay, benefit continuation rules
Pay during activation. Generally, USERRA doesn’t require employers to pay employees while they’re away on military duty. If an employer offers paid leave to employees absent for nonmilitary reasons, however, it’s possible that employees on military leave would be entitled to pay, as well.
Also, under the federal Fair Labor Standards Act (FLSA), employers are still required to pay exempt employees on military leave their salary for any week in which they perform work. However, employers may offset any amount received by employees as military pay while on temporary military service.
Some employers voluntarily choose to pay employees on military leave a “pay differential” for some portion of the leave time taken. Pay differential is the difference between military pay earned and what employees would have received had they continued working for the employer. Should an employer elect to do this, these payments remain subject to federal income tax withholding and must be reported on Form W-2.
When an employee’s active duty exceeds 30 days, however, the differential payments are exempt from Federal Insurance Contributions Act (FICA) and Federal Unemployment Tax Act (FUTA) taxes.
Health benefits. For military leave up to 30 days, employers must continue regular health coverage as if the employee were still working. For military leave exceeding 30 days, employees may elect continuation coverage for up to 24 months in a Consolidated Omnibus Budget Reconciliation Act (COBRA)-like manner. Employers may charge employees up to 102% of the premium for administration costs and the like.
Reemployment rights: precision
With limited exceptions, if an employee meets statutory requirements, including returning to work within the required time frame, USERRA mandates prompt reemployment in the “escalator position.”
Although the following reemployment deadlines may be extended for employees who are injured during service, generally applicable deadlines are as follows:
· For a service period of one to 30 days, the employee must report the next business day.
· For a service period of 31 to 180 days, the employee must reapply within 14 days.
· For a service period of 181 days or more, the employee must reapply within 90 days.
Depending on the period of service, reemployment is as follows:
· For a service period of less than 91 days, returning veterans are entitled to the job they would have been in had they remained continuously employed.
· For a service period of 91 days or more, an employer has the option to reemploy veterans in the position they would have been in had they remained continuously employed or in “a position of like seniority, status, and pay.”
Generally, this means eligible employees must be reemployed to the position they would have attained had their employment not been interrupted by military service—called the “escalator position.” Returning employees are also entitled to the seniority, status, and rate of pay they would ordinarily have attained if continuously employed. This may involve a promotion; wage increase; transfer; or, in some situations, layoff, depending on the employer’s legitimate business circumstances.
In some cases, the position, status, and rate of pay are easily determined. In other cases, the law and regulations recognize that employers will be required to evaluate a number of factors. For example, an employee may need additional time for skills training the employee “missed” during service for a promotion, or an employee’s status may involve missed opportunities for advancement, responsibility, general working conditions, or even job location.
Employers must also provide:
· Necessary training or retraining;
· Reasonable accommodations for service-connected disabilities; and
· Placement in a comparable position if the escalator position isn’t feasible.
Reemployment rights: protection against discharge
To protect veterans from a bad-faith reinstatement, it’s unlawful for employers to terminate reinstated service members, except for cause, during a special protection period:
· For a service period of 31 to 180 days, the special protection period is 180 days.
· For a service period of 181 days or more, the special protection period is one year.
Employers bear the burden of proving an employee was discharged “for cause”—that is, the discharge was reasonable, and the employee had notice such conduct would constitute cause for discharge (for misconduct or another legitimate, nondiscriminatory reason, such as a reduction in force).
Practical steps employers should take now
To prepare, you should consider the following steps:
· Review and update military leave policies. Ensure alignment with USERRA and any applicable state military leave laws.
· Train HR personnel, managers, and supervisors. These individuals are often the first to receive notice of an employee’s deployment. Proper training helps prevent costly compliance errors.
· Maintain clear communication channels. Designate a single point of contact for employees who may be mobilized.
Regardless of how geopolitical developments unfold, you should be prepared for military leave requests. USERRA is a highly protective statute that generously protects those who choose to serve. Compliance is essential not only to meet legal obligations but also to support employees who serve the nation.
Please contact a Jackson Lewis attorney with any questions about compliance with USERRA or other workplace laws, including for policy drafting, training, and other workforce planning.
