How much military leave may an employee take?

A. USERRA places a five-year limit on the combined length of an employee's service-connected absences from an employer. A returning service member is not entitled to reemployment with the person's preservice employer if the total of the person's military absences from the employer exceeds five years. Almost all types of military service (exceptions are noted below) are to be counted in computation of the five-year period.

The following categories of service are exempt from the five-year service limitation:

1. Service that is required beyond five years to complete an initial period of obligated service;

2. A service member's inability to obtain orders releasing him or her from service in the uniformed services before the expiration of the five-year period, and the inability was not the fault of the service member;

3. Service performed to fulfill periodic National Guard and Reserve training; and, service performed to fulfill additional training requirements determined and certified by a proper military authority as necessary for professional development, or to complete skill training or retraining;

4. Service performed in a uniformed service if ordered to or retained on active duty;

5. Service performed in a uniformed service if ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress, as determined by a proper military authority;

6. Service performed in a uniformed service if ordered to active duty (other than for training) in support of an operational mission for which personnel have been ordered to active duty, as determined by a proper military authority;

7. Service performed in a uniformed service if ordered to active duty in support of a critical mission or requirement of the uniformed services as determined by a proper military authority; and,

8. Service performed as a member of the National Guard if called to respond to an invasion, danger of invasion, rebellion, danger of rebellion, insurrection, or the inability of the President with regular forces to execute the laws of the United States.

The Veterans' Employment and Training Service at the U.S. Department of Labor (1-800-442-2VET) can help in determining whether an employee's military service falls within any of these exempted categories. The various branches of the military can also provide assistance.

Service performed to mitigate economic harm when the employee’s employer is in violation of its employment or reemployment obligations is also excepted from the five-year service limitation as, for example, if the employee remains in (or returns to) service in order to mitigate damages caused by his or her employer’s unlawful refusal to reemploy that person.