Military leave: Definition and obligations

Military leave regulations vary by country and often come with specific conditions and rights. In other words, understanding military leave requires a nuanced approach. 

Through this article, we'll explore how military leave works so you can be clear on legal obligations, employee rights, and best practices for supporting staff members who are called to serve. We'll also take a look at issues surrounding company obligations to their international employees and contractors.

What is military leave? 

Military leave is a provision granted by employers to employees who are members of the armed forces. It allows them to take time off from their civilian jobs to fulfill their military duties. 

Military leave of absence makes it possible for these individuals to serve in the military without losing their civilian employment or benefits. Military leave can also be paid or unpaid, depending on the country's legislation and the employer’s policies.

In the US, with more than 325,000 Army National Guard members, HR professionals are likely to run into questions about employee leave for periodic military duty.

Types of military leave

There are different types of military leave that HR managers should be familiar with. Let’s look at a few of them.

Annual training leave

Annual training leave is used for yearly training commitments that reservists must attend. It usually lasts for a set number of days or weeks each year.

Active duty leave

Active duty leave is granted to service members who are called to active duty during a national emergency or conflict or for full-time military service. The duration can vary from a few months to several years.

Emergency leave

Emergency leave is provided in unexpected situations or for emergency duty, such as during a natural disaster or national security incident.

The duration of military leave

The duration of military leave varies significantly based on several factors:

• The type of service required: Whether it’s for military training, active duty, or an emergency situation.

• The country’s legislation: Different countries have different regulations ‌on military leave duration.

• Specific employer policies: Some employers may offer longer leave durations than what is required by law.

Who qualifies for military leave?

Military leave is generally available to:

• Reservists: These are individuals who are part of a country’s reserve military force but have civilian jobs.

• National Guard members: In some countries, members of the National Guard or equivalent forces may be eligible.

What are employers’ and employees’ legal obligations regarding military leave? 

How do you manage military leave? To a large extent, it depends on the country’s military leave policies.

In the US, employers’ and employees’ legal obligations regarding military leave are primarily governed by the Uniformed Services Employment and Reemployment Rights Act (USERRA). This federal law establishes rights and responsibilities for service members and their civilian employers.

Legal obligations of employers

Under USERRA, employers have the following legal obligations.

Provision of leave

Employers are required to provide military leave to employees who serve in the uniformed services. This includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and absences for fitness-for-service examinations.

Not adhering to this provision could lead to wrongful termination.

Pay during leave

There is no federal requirement for employers to pay employees while they are on military leave. However, some employers may offer differential pay or continued salary as part of their company policy.

Non-discrimination

Employers can’t discriminate against employees or potential employees based on their military service. This includes discrimination around decisions related to hiring, promotion, reemployment, termination, or benefits.

Reemployment rights

Upon a service member’s return, their employer must reemploy them in their civilian job if they are still qualified for the position. This means giving them the same seniority, status, and pay, as well as any other rights and benefits determined by seniority.

Employers are also required to make reasonable efforts to train or retrain returning service members to help them qualify for reemployment. This includes providing accommodations for those with any disabilities they may have incurred or that were aggravated during their military service.

Continuing benefits

In terms of benefits, employers must continue health insurance coverage for service members and their dependents for up to 24 months while the member is on military leave. If the service member chooses not to continue coverage, they must be reinstated in their employer’s health plan when they are reemployed, without waiting periods or exclusions (except for service-connected injuries or illnesses).

Independent contractors and military leave

Since independent contractors are not considered employees, they don’t benefit from job protection and reemployment rights under USERRA. Clients or companies that hire independent contractors don’t have to continue contracts that were in place before ‌military service began.

This means that an independent contractor who is called to active duty or decides to volunteer for military service doesn’t have a legal right to return to a contract position once their service is completed. 

However, some independent contractors who serve in the military negotiate terms within their contractor agreements that allow for leave or suspension of work during periods of military service.

Legal obligations of employees

Employees also have obligations regarding military leave: 

Notice to employers

Service members are required to provide advance notice to their employers about their military service unless giving notice is impossible, unreasonable, or precluded by military necessity. This notice can be verbal or written.

Duration of service

The cumulative length of absence for military leave can’t exceed five years per employer. There are some exceptions to this rule for training, involuntary extension, and certain types of service.

A timely return to work or application for reemployment

The time limits for returning to work or applying for reemployment depend on the duration of the military service.

For service less than 31 days, the service member must return at the beginning of the first regularly scheduled work period on the first full day after release from service (allowing for safe travels home, plus eight hours of rest). 

For service of more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days after the completion of service.

For service of more than 180 days, the application for reemployment must be submitted within 90 days after the completion of service.

Which countries have military leave provisions? 

Many countries have provisions for military leave to support their national defense and reserve forces. Here are some examples.

• United Kingdom: The Reserve Forces (Safeguard of Employment) Act provides protection for reservist employees that lets them return to their civilian jobs after mobilization.

• Australia: The Defence Reserve Service (Protection) Act 2001 makes it possible for reservists to take leave from their civilian employment for military service.

• Canada: The Canadian Forces Leave Policy Manual provides job protection for reservists during military service.

It’s important to keep in mind that the extent and specifics of military leave provisions vary from one country to another. They depend on the country’s legal framework, military structure, and approach to national defense.

Some countries offer compensation to employers or employees to offset the impact of military leave, while others rely on unpaid leave arrangements.

However, not all countries have formal military leave provisions. If a country doesn't have significant military commitments or rely primarily on professional volunteer military forces, it may lack formal military leave provisions.

Do military leave obligations apply to companies with employees in other countries?

When an international company employs someone in a foreign country who is called up for military service in their home country, the obligation to provide military leave is generally determined by the laws and regulations of the home country. Employers should comply with these local laws.

Some multinational companies may have their own global policies or specific country policies that provide for military leave. These may offer more generous terms than what local laws require. 

Employment contracts or collective bargaining agreements in the host country may include provisions related to military leave as well. Employers and employees should review any such agreements to understand their rights and obligations regarding military service.

Beyond legal obligations, companies should also consider the cultural and ethical aspects of supporting employees who are called to serve in their country’s military. This support can improve the company’s reputation and employee relations in the host country.

Stay informed about military leave with Remote HR Management

Military leave policies vary widely by country and can be a sticky issue for HR professionals to deal with, especially if you have a distributed team.

Since military leave provisions are governed by the laws in employees’ home countries, make sure to stay informed about your company’s obligations to your international hires.

Remote HR Management helps keep your employee data in one place, so you can support your employee's military obligations and leaves.

Chat with us today to see how Remote can help you and your employees.

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