How soon do I have to apply for reinstatement after my military service ends?

Question:

I serve in the National Guard, and I was called to active duty four months ago. I just finished my deployment and returned home a few days ago. In civilian life, I work for a construction firm. I know I have a legal right to return to my old job, but when do I have to report back? Can I take some time off before returning to work?

Answer:

You are correct about your right to return to your job. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) gives reinstatement rights to employees who are away from work for five years or less due to military service. This reinstatement right doesn't just give you the right to get your old job back. You also have the right to any raises, promotions, or other seniority-based benefits you would have received had you not taken leave.

The rules for reporting back to work depend on how long you were away. Employees like you, who were on leave for more than 30, but fewer than 181 days, must report back to work within 14 days. You must submit an application for reemployment within 14 days of completing your military service. If it's impossible or unreasonable for you to report to work within that timeframe, through no fault of your own, then you must report to work on the next calendar day when it is possible to do so.

Your employer has the right to ask you for documents showing that:

  • your application for reinstatement is timely
  • your service did not exceed five years, and
  • you were separated or discharged from service under honorable conditions.

However, your employer must return you to work even if you're still trying to get these documents together. If the documents don't exist, then you don't have to provide them. However, if documentation later becomes available showing that you didn't meet all of the requirements for reinstatement, your employer may fire you.

For more on USERRA, see Taking Military Leave. You can also find great resources and information at the website of the Employer Support for the Guard and Reserve.

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