Re-employment Schedule

Reemployment Eligibility
USERRA generally provides reemployment rights to an employee whose cumulative period of service in the uniformed services does not exceed five years with the employer from whom the employee seeks reemployment. The five-year limit applies to the employee’s cumulative qualifying service with that employer, not necessarily to any single period of service.

To qualify for reemployment, an employee generally must:

• Provide advance notice of military service, unless military necessity prevents notice or notice is impossible or unreasonable.
• Have cumulative qualifying military service of five years or less with the employer, excluding service exempt from the five-year limit.
• Be released from service under honorable conditions or another qualifying characterization of service.
• Timely report to work or submit an application for reemployment after completing service.

Return-to-Work Deadlines
After completing qualifying service, the employee must notify the pre-service employer of the intent to return by reporting to work or applying for reemployment. The deadline depends on the length of the most recent period of service.

For a service period of fewer than 31 days, or for any absence to undergo a fitness-for-service examination, the employee must report to work no later than the beginning of the first full regularly scheduled work period on the first full calendar day after completing service and after allowing eight hours for safe transportation from the place of service to the employee’s residence. If reporting within that period is impossible or unreasonable through no fault of the employee, the employee must report as soon as possible.

For a service period of 31 to 180 days, the employee must submit an application for reemployment no later than 14 days after completing service. If timely application is impossible or unreasonable through no fault of the employee, the employee must apply on the next full calendar day when it becomes possible.

For a service period of 181 days or more, the employee must submit an application for reemployment no later than 90 days after completing service.

For example, if an employee arrives home at 10:00 p.m. after a short period of military service, the city generally may not require the employee to report until the next regularly scheduled work period that begins at least eight hours after the employee arrives home.

Documentation Requests
For a period of military service lasting more than 30 days, the city may request documentation establishing that the employee’s reemployment application is timely, the employee has not exceeded the applicable five-year service limit, and the employee’s service did not end under a disqualifying discharge or other disqualifying circumstance.

Acceptable documentation may include a DD Form 214, military orders with an endorsement confirming completion of service, a letter from a commanding officer or personnel-support office, a military-training completion certificate, a discharge certificate showing the character of service, payroll-record extracts showing periods of service, or, for National Disaster Medical System personnel, written verification of training or federal activation from an authorized official.

The city may not delay or attempt to defeat reemployment by demanding documentation that does not exist or is not readily available. If qualifying documentation is unavailable, the city must promptly reemploy the employee when the other statutory requirements are met. If documentation later becomes available and shows that the employee was not eligible for reemployment, the city may terminate the employee and discontinue USERRA-related rights and benefits.

For a service absence of more than 90 days, the city may require the employee to provide the requested documentation before treating the employee as having had no break in service for pension-plan purposes. The city may not otherwise delay reemployment while documentation is unavailable.

Five-Year Exceptions and Recovery
Several types of military service do not count toward the five-year cumulative service limit. These include service required beyond five years to complete an initial period of obligated service; required drills, annual training, and other qualifying professional-development or skill-retraining service; involuntary active-duty extensions, recalls, or retention on active duty; service ordered or retained during a war, national emergency, or certain operational missions; and service performed to respond to or support critical missions or operational requirements of the uniformed services.

An employee who is hospitalized for or recovering from an illness or injury incurred in, or aggravated during, military service may receive additional time to report to work or apply for reemployment. The recovery period generally may not exceed two years, but it must be extended by the minimum additional period necessary when circumstances beyond the employee’s control make timely reporting or application impossible or unreasonable.

Employer Exceptions and Reemployment
A city may be excused from reemploying a returning service member only in limited circumstances. Reemployment may not be required when the city’s circumstances have changed so substantially that reemployment would be impossible or unreasonable, when reemployment would impose an undue hardship on the city, or when the pre-service job was for a brief, nonrecurrent period with no reasonable expectation that employment would continue indefinitely or for a significant period.

A city is not required to create a useless position. A genuine reduction in force may affect reemployment if the returning employee would have been included in the reduction even without the military absence. However, the city may not deny reemployment merely because it hired a temporary replacement or because another employee occupies the returning employee’s position. The city bears the burden of proving that an exception applies.

The city must reemploy an eligible service member promptly. In the absence of unusual circumstances, prompt reemployment generally means within two weeks after the employee reports for work or applies for reemployment. For an employee returning from weekend drill or another short service period, prompt reemployment usually means the next regularly scheduled workday. For an employee returning after extended active duty, additional time may be reasonable when the city must restore the employee to the appropriate position, provide training or retraining, or make necessary staffing adjustments.