As the name suggests, the United Services Employment and Reemployment Act (“USERRA”) requires employers of active-duty service members to hold open the employee/service members job while deployed—whether overseas, for training, or otherwise. We often call this the “FMLA” provision of USERRA, referring to the Family Medical Leave Act of 1993, because the sentiment is very similar: deployment, like illness, is often outside of the employee’s control. For that reason, the law does not allow employers to terminate or demote service members when the government orders their deployment.
Turning to the specifics of the law, USERRA entitles the employee/service member to reemployment if that person’s absence is “necessitated by reason of service in the uniformed service.” As is made clear by this provision, training and other military-mandated leave is included in USERRA’s protections, not strictly deployment per se.
The employee/service member is not automatically entitled to reemployment—they must fulfill several obligations under the law. First, the employee/service member must give notice (in writing or verbally) of the absence to his or her employer. Second, the employee/service member is entitled to five years of total leave. This is cumulative, meaning like the FMLA, the five years may be utilized periodically. Third, the employee/service member may not leave the service with a disqualifying discharge. Lastly, and unlike the FMLA, the employee/service member must request to return to the employer within certain timeframes specified by USERRA.
