Military Leave

What Is Military Leave?

Military leave is job-protected time off that allows employees to fulfill their military service obligations, including active duty, training, and related activities. In California, military leave is protected by both state law (Military and Veterans Code) and federal law (Uniformed Services Employment and Reemployment Rights Act - USERRA). These laws ensure that employees who serve in the armed forces, National Guard, or reserves can maintain their civilian careers while fulfilling their military duties.

Military leave protections recognize the sacrifices that service members make for their country and ensure that their civilian employment is not jeopardized by their service. The laws provide comprehensive protections including job security, benefit continuation, and protection from discrimination based on military service.

California and Federal Requirements

Applicable Laws

Military leave is governed by multiple overlapping laws:

Law	Jurisdiction	Coverage
USERRA	Federal	All employers, regardless of size
California Military and Veterans Code	State	All California employers
California Government Code 12940	State	Anti-discrimination protections
California Labor Code 395-395.9	State	Specific leave rights

Employer Coverage

Law	Employer Size	Employee Type
USERRA	All employers	All employees
California state law	All employers	All employees

No Exceptions: Unlike many employment laws, military leave protections apply to all employers regardless of size, from the largest corporations to single-employee businesses.

Covered Military Service

Types of Service Covered

Service Type	USERRA	California Law
Active duty	Yes	Yes
Active duty for training	Yes	Yes
Initial active duty training	Yes	Yes
Inactive duty training	Yes	Yes
Full-time National Guard duty	Yes	Yes
Examination for fitness	Yes	Yes
Funeral honors duty	Yes	Yes
State military emergency duty	Varies	Yes

Covered Military Components

Branch/Component	Covered
U.S. Army (active and reserve)	Yes
U.S. Navy (active and reserve)	Yes
U.S. Air Force (active and reserve)	Yes
U.S. Marine Corps (active and reserve)	Yes
U.S. Coast Guard (active and reserve)	Yes
U.S. Space Force	Yes
Army National Guard	Yes
Air National Guard	Yes
California State Guard	Yes (state law)
Commissioned Corps of Public Health Service	Yes

Duration of Leave

Maximum Leave Entitlements

Requirement	Duration
USERRA cumulative limit	5 years of military leave with reemployment rights
California state law	Up to 17 days annually for training (public employees)
Emergency/mobilization	No limit during deployment

What Counts Toward the 5-Year Limit

Included	Not Included
Voluntary service	Required initial training
Most reenlistments	Involuntary extensions
Voluntary training	Training required to maintain readiness
Extended tours	Service during war or national emergency

Exceptions to the 5-Year Limit

Service does not count against the 5-year limit if:

Exception	Description
Initial enlistment requirement	Basic training and initial skill training
Required readiness training	Annual training, weekend drills
Involuntary service	Called to active duty involuntarily
National emergency	Service during declared emergency
Support of critical mission	Certain specified operations

Pay During Military Leave

Federal Law (USERRA)

USERRA does not require employers to pay employees during military leave:

USERRA Pay Requirement	Status
Regular wages during leave	Not required
Vacation accrual	Not required (but cannot reduce)
Benefits	Continue as if on leave of absence

California Law Pay Requirements

California provides additional pay protections:

Employee Type	Pay Requirement
Public employees	Up to 30 days paid per fiscal year (state employees)
Private employees	No pay requirement (unless employer policy)
Temporary military duty	Up to 17 days paid for training (public sector)

Using Accrued Leave

Leave Type	Employee May Use	Employer May Require
Vacation/PTO	Yes	No (USERRA prohibits)
Sick leave	Generally no	No
Personal days	Yes	No

Important: Under USERRA, employers cannot require employees to use vacation or other paid leave during military service, but employees may choose to use it.

Notice Requirements

Employee Notice to Employer

Requirement	Details
Advance notice	As much advance notice as possible
Written or verbal	Either acceptable
Timing	"As far in advance as reasonable"
Exceptions	Military necessity or impracticability

What Notice Must Include

Element	Required
General intent to take leave	Yes
Specific dates (if known)	Yes
Written military orders	Not required (but helpful)
Estimated duration	When known

When Notice Is Excused

Notice is not required when:

• Military necessity prevents notice
• Otherwise impossible or unreasonable
• Precluded by military regulations

Reemployment Rights

USERRA Reemployment Protections

Returning After	Reemployment Deadline
1-30 days of service	Next scheduled work day (plus travel and 8 hours rest)
31-180 days of service	Within 14 days of release
181+ days of service	Within 90 days of release

Position Entitlement Upon Return

Length of Service	Position Entitlement
1-90 days	Same position or position of like seniority, status, and pay
91+ days	Same position OR position of like seniority, status, and pay the employee would have attained
Disabled during service	Same, equivalent, or nearest approximation with reasonable accommodation

"Escalator Principle"

The escalator principle ensures returning service members receive:

Right	Description
Seniority	Seniority that would have accrued during service
Pay increases	Raises that would have been received
Promotions	Promotions that would have occurred
Benefits	Benefits that would have accrued

Example: If an employee would have received a 5% raise and promotion during their 12-month deployment, they are entitled to both upon return.

Benefits During Military Leave

Health Insurance Continuation

Duration of Service	Coverage Requirement
Up to 30 days	Employer must continue coverage at employee cost
31+ days	Employee may elect COBRA-like continuation for up to 24 months
Premium cost	Employee pays up to 102% of full premium

Pension and Retirement Benefits

Protection	Description
Service credit	Military service counts toward vesting
Benefit accrual	Treated as if employee never left
Employer contributions	Employer must make up missed contributions upon return
Employee contributions	Employee may make up contributions within time limit

Other Benefits

Benefit	During Leave	Upon Return
Life insurance	May continue at employee cost	Reinstated
Disability insurance	Per plan terms	Reinstated
Vacation accrual	Not required	Resume accrual
Seniority	Continues to accrue	Full credit

Protection from Discrimination

Prohibited Actions

Employers cannot discriminate based on:

Protected Status	Examples of Discrimination
Membership in military	Refusing to hire
Application for military service	Denying promotion
Performance of military service	Terminating employment
Obligation for military service	Reducing hours

Retaliation Prohibited

Employers cannot retaliate against employees who:

Protected Activity
Take military leave
Apply for reemployment
Exercise USERRA rights
Testify in USERRA proceedings
Assist others with USERRA claims

California-Specific Protections

California Military and Veterans Code

California provides additional protections beyond USERRA:

Protection	Details
No discharge during service	Cannot terminate during military duty
Spouse notification	May notify spouse of employee's leave
Public employee pay	Paid leave for training (up to 30 days/year for state employees)
Emergency duty	Protected during state emergencies

California National Guard

Situation	Protection
State active duty	Job-protected leave
Emergency activation	Cannot be penalized
Training	Annual training protected

Military Spouse Leave

Under California Military and Veterans Code Section 395.10:

Entitlement	Details
Who qualifies	Spouse of deployed military member
Employer size	25+ employees
Leave duration	Up to 10 unpaid days
When	During qualified leave period (deployment home)
Notice	At least 2 business days (when possible)

Documentation Requirements

Upon Request for Leave

Document	Required?
Military orders	May request, not mandatory
Verbal notice	Acceptable
Estimated duration	When reasonably known

Upon Return from Leave

Document	When Required
DD-214 or discharge papers	Service over 30 days (upon employer request)
Leave and earnings statement	To establish dates of service
Documentation of fitness	If hospitalized or recovering

Time to Provide: Employees have reasonable time to provide documentation; lack of documentation cannot delay reemployment if beyond employee's control.

Enforcement and Remedies

Filing a Complaint

Agency	Process
VETS (Veterans' Employment and Training Service)	File complaint within 60 days of violation
Department of Justice	DOJ may pursue on employee's behalf
Private lawsuit	Federal or state court
California DFEH	For state law violations

Available Remedies

Remedy	Description
Reemployment	Return to position
Back pay	Lost wages and benefits
Liquidated damages	Equal to back pay for willful violations
Benefits restoration	Health, pension, seniority
Attorney's fees	In federal court actions

Statute of Limitations

Claim Type	Time Limit
USERRA	No specific limit (use promptly)
California claims	3 years for most claims

Best Practices for Employers

Policy Development

Create a comprehensive military leave policy including:

1. Statement of support for employees who serve
2. Leave procedures - how to request leave
3. Notice requirements - what employees should provide
4. Benefits continuation - options during leave
5. Reemployment procedures - how to return
6. Contact information - who to communicate with

During Employee's Service

Action	Implementation
Maintain records	Keep position available
Benefit continuation	Process COBRA-like options
Communication	Maintain reasonable contact
Position planning	Plan for return/coverage

Upon Employee's Return

Step	Timeline
Acknowledge return request	Immediately
Reinstate to position	Per USERRA deadlines
Restore benefits	Immediately upon return
Process any pay adjustments	Within first pay period
Provide any required training	Reasonable time for requalification

Common Compliance Mistakes

Mistake	Correction
Requiring written orders	Accept verbal notice
Terminating after 5 years	Check exceptions to limit
Not continuing seniority	Apply escalator principle
Requiring vacation use	Make it employee choice
Delayed reinstatement	Follow USERRA timelines

Practical Examples

Example 1: Weekend Drill

Scenario: Sergeant Rodriguez, an Army Reserve member, has monthly weekend drills (Saturday-Sunday) that occasionally conflict with his retail work schedule.

Analysis:

• Weekend drills are protected inactive duty training
• Employer must allow time off
• No pay required but cannot penalize

Outcome: Employer accommodates schedule, does not count weekend absences against Rodriguez, and maintains his seniority and benefits as if he worked those days.

Example 2: Deployment

Scenario: Lieutenant Chen, a Navy Reserve officer, receives orders for a 12-month deployment. She is a software engineer earning $120,000 annually.

Analysis:

• 12-month deployment is protected under USERRA
• Chen is entitled to reemployment within 90 days of return
• She should receive any raises/promotions she would have earned

Outcome: Upon return, Chen is reinstated to her position (or equivalent). If her team received 5% raises during her absence, she receives the same. Her 401(k) employer match is restored as if she had contributed during deployment.

Example 3: Military Spouse Leave

Scenario: Michael's wife, an Air Force pilot, has a 2-week rest period between deployments. Michael works for a company with 50 employees and wants time off during her home visit.

Analysis:

• California Military Spouse Leave applies (25+ employees)
• Michael is entitled to up to 10 days unpaid leave
• He should provide at least 2 business days notice

Outcome: Michael takes 10 days of unpaid leave to spend with his wife. His employer holds his position and maintains his benefits during this time.

Example 4: Requalification Training

Scenario: Specialist Williams returns from a 24-month deployment to find his technical certifications have expired and new systems have been implemented.

Analysis:

• Employer must provide reasonable retraining/requalification
• Cannot terminate for lack of current skills
• Must allow reasonable time to regain qualifications

Outcome: Employer provides Williams with 30 days of training to update his certifications and learn new systems. He is paid during this requalification period and returned to full duties once qualified.

Example 5: Escalator Principle Application

Scenario: Private First Class Garcia was a warehouse associate making $18/hour before a 3-year deployment. During his absence, the company implemented a pay scale where employees with his tenure now earn $22/hour, and his position was reclassified to "Senior Warehouse Associate."

Analysis:

• Escalator principle applies
• Garcia would have received pay increases and possible promotion
• He is entitled to the position/pay he would have attained

Outcome: Garcia returns as Senior Warehouse Associate at $22/hour, matching what he would have earned had he remained employed continuously.

Employer Support Resources

Department of Labor Resources

Resource	Description
USERRA Advisor	Interactive tool for compliance
eVETS	Electronic complaint filing
VETS helpline	Technical assistance

California Resources

Resource	Description
CalVet	State veterans affairs
Employment Development Department	Claim assistance
Civil Rights Department	Discrimination complaints

Military Leave and Other Laws

Interaction with FMLA/CFRA

Feature	Military Leave	FMLA/CFRA
Purpose	Military service	Family/medical
Duration	Up to 5 years	12 weeks
Overlap	Separate entitlements	Does not run concurrently

Military Caregiver Leave

Under FMLA (not CFRA):

Entitlement	Details
Duration	Up to 26 weeks
Purpose	Care for injured service member
Relationship	Spouse, child, parent, or next of kin
Injury	Serious injury/illness incurred in line of duty

Military leave represents a critical intersection of employment law and civic duty. Employers who support military service members not only comply with the law but also demonstrate commitment to those who serve their country.