Can You Terminate an Employee on Military Leave?

If your human resources team is currently looking to conduct a reduction event, you might be wondering whether your organization can lay off any employees who are currently on military leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

What Are USERRA Military Leave Employer Obligations?

First, let’s explore the implications and obligations for employers under this law. The Uniformed Services Employment and Reemployment Rights Act of 1994 states that the employer has the burden of proof, and must provide a sound business reason for the layoff of any employees who have been called away to perform their duties for the uniformed services voluntarily or involuntarily. This includes adequate documentation regarding the business decision and layoff selection criteria to ensure compliance with the law in the event that an employee challenges their termination under USERRA.

Different parts of USERRA apply based on whether the employee is seeking civilian employment, actively engaged in civilian employment, preparing for military deployment, away on military deployment, or returning from military deployment​. For the purposes of this article, we will focus on employees who are actively engaged in civilian employment and currently away on military deployment during the reduction event.

In these situations, USERRA provides a number of protections for employees to ensure they are treated the same as if they had never left for military duty. The law states that employers cannot take military service into account when deciding to terminate, discipline, promote, or award benefits to employees. The employee must be given the same benefits that are generally provided to a non-military employee who goes on a furlough or leave of absence.

In addition, employees may not be retaliated against for exercising their USERRA rights, for filing a complaint under USERRA, or for assisting others in exercising their USERRA rights. For instance, if an employee believes their USERRA rights have been violated and files a complaint, the employer may not respond by firing, demoting, or otherwise retaliating against them.

While the USERRA law is fairly straightforward, the specific implications for your employees on military leave can vary depending on the situation. That’s why it’s so important to understand military leave policy for employers–as well as all other federal laws regarding layoffs–and have a solid policy in place to inform your workforce about the legal implications and procedures in the event that a reduction event impacts any employees on military leave from civilian employment.

What Is a Standard Military Leave Policy for Employers?

A thorough leave policy is essential for any employer, and should include provisions for all types of leaves of absence that employees might take, including military leave from civilian employment.

So a standard military leave policy for employers should specify the company policies and procedures for these situations that at least meets, if not exceeds, all applicable federal and state laws, including the Family and Medical Leave Act (FMLA) and USERRA military leave employer obligations. This ensures that any decisions regarding hiring, firing, promoting, demoting, or rewarding employees are done legally and fairly, protecting both employees against discrimination and employers against the possibility of costly litigation.

This is especially important for employees who are part of any protected classes, such as individuals with disabilities, protected veterans, and those still active in military service. Your company leave and layoff policies should specify how your organization will ensure compliance with all applicable laws for these protected individuals, as well as for all employees, against unlawful discrimination and termination. This should include the procedures these employees should follow if they wish to challenge their termination.

Your company military leave policy should also detail how your organization will support these individuals while they are on military leave, when they return from leave, and upon lawful termination from the company if the situation arises. This is where offering outplacement is invaluable to help your laid off employees on military leave–or other similar situations–to find fulfilling new employment as soon as possible. Our Careerminds outplacement services enable your organization to provide industry-leading support for your impacted employees and reduce stress for everyone involved in your next reduction event.

So Can You Terminate an Employee on Military Leave?

The short answer is yes, your organization can terminate employees on military leave. But in reality, the full answer is more complicated than that.

Your organization can terminate an employee on military leave if that person would have been laid off regardless of their military status, even if they had been a civilian at the time. For example, if you have a plant that closes down and results in all employees being laid off, any employees at that plant location who are on military leave would have been laid off had they not been on said military leave. In that case, the answer is yes, your organization can legally lay off these individuals.

However, you can’t lay off an employee on military leave simply because that person is on military leave. This would be unethical and against the law. If the reason for that employee’s termination pertains to their military status or military leave, then the answer is no, you cannot legally lay off that individual.

In all situations, it is the employer’s responsibility to build a case for why the layoff of said individual on military leave needed to occur. This is why it is so important for employers to fully understand their rights, as well as the rights of their employees, under USERRA and be prepared to show evidence of their decision to terminate an employee on military leave in case it is challenged.

If you are preparing to lay off an employee on military leave–or in any other circumstances such as employees on maternity leave–the language in your layoff communication needs to be as thorough and thoughtful as possible. Click below to download our free sample layoff letter and layoff script guides to help you craft empathetic notifications and navigate this delicate process.

Rebecca Ahn

Rebecca is a writer, editor, and business consultant with over 10 years of experience launching, managing, and coaching small to midsize companies on their business, marketing, and HR operations. She is a passionate people advocate who believes in building strong people, teams, and companies with empowering culture, content, and communication that facilitates meaningful results at every level and touchpoint. In her spare time, Rebecca is an avid traveler and nomad who also enjoys writing about travel safety and savvy. Learn more on her LinkedIn page.