Can employers require reemployment eligibility documentation from employees returning from military leave?

Employers have the right to request that a person who was absent for a period of service of 31 days or more provide it documentation showing that:

• the person's application for reemployment was timely;

• the person has not exceeded the five-year service limitation; and

• the person's separation from service was under honorable conditions.

What if documentation is not readily available? If a person does not provide satisfactory documentation because it's not readily available or doesn't exist, the employer still must promptly reemploy the person. Employers may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not readily available.

However, if, after reemploying the person, documentation becomes available that shows one or more of the reemployment requirements were not met, the employer may terminate the person. The termination would be effective as of that moment.

USERRA makes no provision for requests for documentary proof of reemployment eligibility after military service of one to 30 days. Because discharge papers are generally not issued after service of one to 30 days, documentary proof of reemployment eligibility would not in any event be readily available. However, there is nothing in the law to prevent an employer from seeking proof that a person returning from such a period of service is reemployment eligible. But to minimize the risk of liability for wrongfully refusing reemployment, the employer should first reemploy the person and then resolve any doubts about the person's eligibility.

Qualifying documents. Documents that satisfy the requirements of USERRA include the following:

• DD (Department of Defense) 214 Certificate of Release or Discharge from Active Duty;

• Copy of duty orders prepared by the facility where the orders were fulfilled and carrying an endorsement indicating completion of the described service;

• Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority;

• Certificate of completion from military training school;

• Discharge certificate showing character of service;

• Copy of extracts from payroll documents showing periods of service; and

• Letter from National Disaster Medical System (NDMS) Team Leader or Administrative Officer verifying dates and time of NDMS training or federal activation.

Must applications for reemployment be in any particular form? No. An application for reemployment (required after more than 30 days of military service) may be in any form, oral or in writing, as along as the application clearly conveys that the person is a returning service member who wants work. The application should be made to the employer or a representative of the employer who has authority to act to reemploy the person or who is in a position to forward it to someone who has such authority.