As an employer, you may find yourself wondering if you can terminate an employee while they are on military leave. Military leave can create unique challenges for both employees and employers, especially when it comes to issues like job security, reemployment rights, and whether layoffs or terminations can occur.
If you’re unsure about the rules, this article will provide a straightforward explanation of the laws that apply when an employee is on military leave, specifically focusing on the Uniformed Services Employment and Reemployment Rights Act (USERRA), and what it means for you as an employer.
What is USERRA?
Before diving into the specifics of military leave, it’s essential to understand USERRA—the law that protects employees who serve in the military. USERRA, or the Uniformed Services Employment and Reemployment Rights Act of 1994, is a federal law designed to protect the rights of employees who are called to serve in the U.S. military or other uniformed services.
The law applies to both public and private employers, regardless of their size, and ensures that employees can return to their civilian jobs after serving in the military without facing discrimination or adverse actions based on their service.
In simple terms, USERRA prevents employers from terminating, demoting, or treating employees unfairly simply because they are serving in the military. Additionally, it ensures that when these employees return, they are reinstated to their positions or equivalent roles, with the same benefits and seniority they would have earned had they not been away.
Can You Terminate an Employee on Military Leave?
The short answer is yes, but only under specific circumstances. Let’s break down the rules so that you, as an employer, can better understand when it is lawful to terminate an employee on military leave, and when it would be considered illegal.
Terminations Based on Military Service Are Prohibited
First and foremost, you cannot terminate an employee simply because they are on military leave or because of their military service. Doing so is illegal under USERRA. If the termination is directly linked to the employee’s military service, it is considered discrimination and is prohibited. For example, if an employee is on active duty and you terminate them just because they are serving in the military, this is unlawful.
USERRA also provides protection from discrimination in several other ways:
- Promotions: You can’t refuse to promote someone just because they are on military leave.
- Benefits: Employees on military leave are entitled to the same benefits as if they were working, such as health insurance or retirement contributions.
- Hiring or Reemployment: You cannot refuse to hire or rehire someone based on their military service.
Can You Lay Off an Employee on Military Leave?
The situation becomes more complex when it comes to layoffs or reductions in workforce. In the case of a layoff, the answer depends on the circumstances.
You can lay off an employee on military leave, but only if that employee would have been laid off even if they weren’t on military leave. For example, if your business is facing financial difficulties or a company-wide downsizing, and the employee would have been laid off regardless of their military service, then the layoff is lawful.
However, if the reason for the layoff is solely because the employee is on military leave, then this would violate USERRA. Employers must be able to prove that the decision to lay off the employee was based on legitimate, non-discriminatory business reasons. If an employee is laid off while on military leave, the employer must be able to demonstrate that the layoff was due to factors such as:
- Financial struggles affecting the company.
- Operational restructuring or downsizing.
- Business decisions that are unrelated to the employee’s military status.
Reemployment Rights: What Happens After Military Leave?
One of the core protections of USERRA is the reemployment rights of employees after they return from military leave. The law ensures that employees who leave their civilian jobs for military service have the right to return to the same job or a comparable position upon their return, with the same pay, benefits, and seniority they would have had if they had not been absent.
This means that if you terminate or lay off an employee while they are on military leave, you must reinstate them to their position when they return, as long as the criteria for reemployment under USERRA are met. These criteria include:
- The employee must have given notice of their military service to their employer.
- The employee must have been absent for a cumulative period of five years or less for military service.
- The employee must have been honorably discharged from military service.
- The employee must request reemployment within a certain time frame after their military duty ends, depending on the length of their leave.
If an employee meets these conditions, they are entitled to reemployment rights, and you, as the employer, must reinstate them.
When Can You Lawfully Terminate an Employee on Military Leave?
While military service offers strong protection against termination, it’s important to understand that there are still situations where termination is allowed. Here are some scenarios where you can lawfully terminate an employee on military leave:
- Job Elimination: If the position is eliminated as part of a legitimate business decision that would have applied to any employee, not just the one on military leave.
- Disciplinary Action: If the employee’s conduct outside of their military service warrants termination (e.g., violation of company policies, misconduct, or performance issues). Military status cannot be the reason for termination, but other job-related reasons still apply
- Insubordination or Misconduct: If the employee engages in misconduct or insubordination, such as violating company policies, this could be a lawful reason for termination, even if the employee is on military leave.
What About Benefits During Military Leave?
USERRA ensures that employees on military leave are not disadvantaged when it comes to benefits. Employers must treat these employees the same as they would if they were on a regular leave of absence. Here’s how it works:
- Health Insurance: Employees can choose to continue their health insurance coverage while on military leave. Employers are required to provide the same health insurance benefits, but the employee may need to pay for their portion of the premium.
- Retirement Benefits: Employers must continue contributing to the employee’s retirement plan if the employee is on military leave. In addition, employees should receive credit for the time they spend on military service for seniority purposes.
These benefits are crucial to the employee’s overall job security, and as an employer, it’s essential to ensure that these benefits continue as required by law.
Enforcing USERRA Rights
If an employee believes that their rights under USERRA have been violated, they can file a complaint with the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS). The Department of Labor will investigate the issue and attempt to resolve the complaint.
If the issue is not resolved, the employee has the option to take legal action through the courts, where they may seek damages, reinstatement, or other remedies.
As an employer, it’s crucial to understand these legal protections and ensure that you comply with USERRA. Failure to do so can result in costly legal battles and damage to your company’s reputation.
Key Takeaways
- You cannot terminate an employee simply because they are on military leave. This would be illegal under USERRA.
- Layoffs are permitted if the employee would have been laid off regardless of their military status.
- Reemployment rights are guaranteed. Employees are entitled to return to their same or equivalent job after military service.
- You must continue benefits such as health insurance and retirement contributions while an employee is on military leave.
- Disciplinary actions unrelated to military service can lead to lawful termination, but military service cannot be a factor in such decisions.
- If in doubt, seek legal counsel to ensure compliance with USERRA and avoid potential issues.
By understanding these protections and ensuring compliance, you can avoid legal pitfalls and support employees who serve in the military. This not only protects your business but also demonstrates respect for the sacrifices made by those who serve in the armed forces.