Proposed USERRA Rule Addresses Advance Notice of Military Leave

On July 28, 2014, the U.S. Department of Defense (DOD) issued a proposed rule to better inform and assist employees and employers to comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA applies to all employers, public or private, in the United States. USERRA protects employees who apply for uniformed service and those currently serving in active or inactive duty in the military including the National Guard.

The proposed rule describes outreach the DOD will do to inform service members of their rights and obligations in obtaining military leave, including educating them on the advance notice they must provide to their employers. To be eligible for reemployment rights, USERRA requires service members to notify their employers as soon as reasonably possible of pending military service except where notice is prevented by military necessity or otherwise impossible or unreasonable under the circumstances.

The DOD recommends service members notify their employers at least 30 days before their departure when feasible. Although USERRA allows oral notice, the DOD encourages written notice to avoid unnecessary disputes over whether notice was given. The current regulations state notice may be informal and does not need to follow any particular format. The proposed rule outlines these other acceptable methods of notice:

  • Notice from an appropriate officer in the service member chain of command, preferably in writing
  • A copy of the service member’s unit’s annual training schedule for duty served on those dates or a blank signed standardized letter in which the service member fills in the dates of service
  • Advance notice letters such as the samples provided by the Employer Support of the Guard and Reserve (ESGR)

The proposed rules also state military departments will require service members to provide verification of absence and discharge status to employers upon request, regardless of the duration of the service-related absence. Failure to comply; however, does not affect the employer’s legal responsibilities under USERRA including prompt reemployment or the service member.

The DOD will be accepting comments on the proposed rule through September 26, 2014. Comments may be submitted through the federal rule-making portal at http://www.regulations.gov or by mail.