What is an employer's obligation under USERRA to return employees on military leave to work?

Entitlement to reinstatement after military leave includes a few conditions:

• The employee gave the employe​r notice of the need for military leave (oral or written).
• The period of military service did not exceed five years (Note: Some types of duty do not count against this five-year limit.)
• The employee was released under honorable conditions.
• The employee returned and applied for re-employment within the following time restrictions:

• • Leaves of less than 31 days. The employee must report to work on the first regularly scheduled work period following the completion of military service; no application is required.
  • More than 31 days but less than 180 days. The employee must apply for reinstatement within 14 days after completion of military service.
  • More than 180 days. The employee must apply for reinstatement no more than 90 days after completion of military service.

• • Note: Employees with disabilities have two years after their dates of return (for purposes of recuperation and convalescence) to seek re-employment.

When an employee returns from military service, he or she is entitled to return to the position the employee would have attained if he or she had not been called to serve. In other words, if the employee would have been promoted had he or she not been on military leave, the employer must reinstate the employee into this promoted position. This may require additional training to bring the employee up to speed to take on the new role.

Additionally, a reinstated employee must receive all the seniority, status, pay and benefits he or she would have been entitled to if the employee had been actively working during his or her military service. For example, if the employee would have received pay increases had he or she been actively working, these increases in pay must be provided to the employee upon reinstatement.

The re-employment obligation has three exceptions:

• The employer’s circumstances have so changed as to make such re-employment impossible or unreasonable.
• Re-employment would impose an undue hardship on the employer.
• The employment was for a brief, nonrecurring period with no reasonable expectation that such employment would continue indefinitely or for a significant period.

Prior to denying any reinstatement request, employers should consult with legal counsel.