Military Leave

The Texas employment lawyers at Rob Wiley, P.C. represent employees in military leave issues. If you believe your employer has denied you the right to military leave, has refused to properly reinstate you after military leave, or retaliated against you for taking military leave, please contact us.

The Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") protects workers who take military leave. This usually happens when a worker is a member of the National Guard or Reserves and is called to duty.

How long can the military leave be?

Generally, an employee has a right to reemployment if the cumulative leave is five years or less. There are exceptions, such as where an initial enlistment lasts more than five years, periodic National Guard and Reserve training duty, and involuntary active duty extensions or recalls.

What about employees injured on military leave?

If an employee is injured on military leave, the employee has additional rights. The employer must make a reasonable accommodation for the disability. Furthermore, service members recovering from injuries received in active duty (or training) receive an additional two years from the date of completion of service to choose to be reinstated.

Does an employee earn seniority while on military leave?

Yes. An employee must be returned to the job he or she would have attained had the employee not taken military leave. This is called the “escalator principle.” This entitlement to seniority includes any bona fide seniority system, status, pay, and any other right determined by seniority.

If an employee returning from military leave is not qualified to perform an escalated position, the employer must provide training to make the employee qualified. If the employee remains unqualified, the employer must offer an alternative position.

What happens to health insurance and pension plans while an employee is on military leave?

If the leave is less than 31 days, the employer must continue health coverage as though the employee was not on military leave. If the leave is more than 30 days, the employee may choose to continue health coverage. However, the employee may be required to pay premiums. Regardless of length of military leave, all pension plans are protected.

What duties does an employee have once his or her military leave ends?

If the military service was for less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service (taking into account travel time plus an eight-hour rest period).

If the military service was more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service.

For service of more than 180 days, the service member must submit an application for reemployment must be submitted within 90 days of release from service.

What duties does the employee have to notify an employer of upcoming military leave?

Service members must provide advance notice to the employers for all military duty. This notice may be written or verbal (obviously written is better). The only exception is if giving notice is impossible, unreasonable, or prevented by military necessity. Notice should be given as far in advance as is reasonably possible.

Can a service member be paid vacation or annual leave while on military leave?

Yes. Additionally, service members can use accrued vacation or annual leave while on military duty.

Can an employer retaliate against an employee for taking military leave?

No. An employe cannot retaliate against an employee for taking military leave.

Contact a Texas Employment Lawyer

Our Texas employment lawyers are experienced in fighting for employee rights. If you believe that your employer has denied you military leave, refused to properly reinstate you after military leave, or has retaliated against you for taking military leave, please contact us.