Ask the Expert, Leave Policy/Compliance

Ask the Expert: Military Leave—Paid or Unpaid?

We have an employee that just came back from military leave. He did not present orders to HR or payroll and turned in a timecard with “5 days Military Leave” written across the week he was gone. Payroll paid him for that week and deducted 40 hours of leave. The employee came back stating that he wanted to be on unpaid leave and didn’t want any of his paid leave used. Does he have the right to do this? It states in our personnel policy that any unpaid leave must first be approved by the department head.

Thank you for your inquiry regarding paid leave for an employee on military leave.

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994, an employer may not require the employee to use accrued vacation, annual, or similar leave during a military service. The law covers all public and private employers.

With regard to required notice of the employee’s military leave, under USERRA, employers have the right to receive advance notice of service, unless military necessity or other conditions make it impossible for the employee to provide notice. The employee, or an appropriate officer of the uniformed service in which his or her service is to be performed, must notify the employer that the employee is to perform military service.

The notice to the employer may be either verbal or written. The notice may be informal and does not need to follow any particular format.

Note: An employee who provides notice of military leave is not asking for the employer’s permission to leave his or her employment. If the employee is qualified under USERRA, he or she is legally entitled to take such leave and to be reemployed at the end of his or her term of service. However, the employer is permitted to bring its concerns over the timing, frequency, or duration of an employee’s service to the attention of the appropriate military authority.