Military service is a duty, not a disruption. Yet for many employees, serving in the National Guard or Reserves comes with real fears: Will I lose my job while I’m gone? Can I be fired for taking leave? USERRA exists to protect servicemembers, but employers also have responsibilities and rights. Understanding how USERRA military leave works helps both sides—employee and employer—avoid costly mistakes and legal risks.
What Is USERRA Military Leave?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that protects employees who leave civilian jobs to serve in the military. This includes active duty, training, and even certain fitness-for-duty exams. USERRA applies to all employers, public and private, regardless of size.
Under USERRA, employees are entitled to unpaid military leave and the right to be reemployed in the same or a comparable position once their service ends. This applies whether the leave is for a few days of training or several months of deployment. In Colorado, both federal law and state statutes uphold these protections. Colorado is home to several military installations, including Buckley Space Force Base in Aurora, Fort Carson in Colorado Springs, and Peterson Space Force Base, which makes these protections especially important for local workers and employers.
Can You Get Fired for Military Leave?
No. An employer cannot fire an employee simply for taking military leave under USERRA. Doing so is a violation of federal law. If an employee meets the basic requirements—advance notice, honorable service, and timely return—they have reemployment rights.
That said, USERRA does not provide blanket protection from all terminations. For example, if the employer can prove the termination was unrelated to military service (such as misconduct or business closure), it may be lawful. But the burden is on the employer to prove that reason.
In most cases, firing someone while they are on military leave—or shortly after they return—is risky and should be avoided unless there is clear, well-documented cause.
Can You Terminate an Employee on Military Leave?
Terminating an employee who is actively serving is extremely limited under USERRA. Employers must be cautious. The law provides for job protection during the entire period of leave and for a protected window after the employee returns to work.
The length of protection depends on how long the employee was on leave:
- If military service lasted more than 30 days but less than 181 days, the employee can’t be fired without cause for 180 days after returning.
- If service exceeds 180 days, the no-fault termination protection lasts one full year.
This means you cannot terminate a returning employee—even during a layoff—without clear, documented, performance-related cause. If the employee was laid off while on leave and others in the same role were also let go, the employer may have a defense, but only with proper records.
USERRA Military Leave for Employees: What You Need to Know
If you’re preparing for military leave, here are your rights and responsibilities:
Provide Advance Notice
Tell your employer in writing as early as possible before your leave begins. Verbal notice is permitted, but written is stronger evidence if issues arise.
Keep Your Service Honorable
Your reemployment rights depend on being discharged under honorable conditions. Misconduct during service can affect your rights.
Return on Time
You must report back or apply for reinstatement in the timeframe USERRA requires. For short leave (30 days or less), you must return the next workday after travel time and rest. For longer leave, you have more time but must still act promptly.
Request Reinstatement
Your employer must place you in the same or a comparable position with the same benefits, pay, and status. If your job changed during your absence, you may be entitled to retraining.
Employers cannot demand that you reapply as if you were a new hire. Reinstatement is a legal right—not a request for a new job.
USERRA Compliance for Employers in Colorado
Employers have obligations and opportunities under USERRA. Avoiding violations starts with clear policies, documentation, and communication.
Document Military Leave Notices
When an employee notifies you of upcoming service, acknowledge it in writing. Track start and end dates carefully. Maintain contact during long leaves where appropriate.
Protect the Role
Do not reassign or permanently replace the employee’s position. You may need to fill the role temporarily, but you must be ready to reinstate the employee when they return.
Avoid Adverse Action
Don’t deny promotions, benefits, or assignments because of military obligations. Discrimination based on service is strictly prohibited.
Termination Must Be Justified
If an employee is terminated while on leave or shortly after returning, expect to justify the decision with documentation. Conduct, not cost or inconvenience, must be the reason.
Baker Law Group, PLLC helps both employees and employers across Colorado understand and comply with USERRA. Whether you’re returning from service or navigating a leave request as a business owner, legal guidance reduces risk and ensures rights are respected.
When to Contact an Attorney
If you’re an employee denied reinstatement or terminated after military leave, speak with an employment attorney immediately. Time limits apply, and gathering records early strengthens your case.
If you’re an employer unsure about leave obligations, seeking legal advice can prevent missteps. Terminating someone on military leave—even if well-intentioned—can result in serious legal exposure.
Baker Law Group, PLLC assists clients throughout Colorado with USERRA-related claims and compliance strategies. Our firm combines responsive service with strategic thinking to resolve military leave disputes.
Stand Up for Your Rights
Military service deserves respect—not retaliation. Whether you’re about to deploy, just returned, or facing unfair treatment at work, you have rights under USERRA. And if you’re an employer, you have responsibilities—but also the ability to maintain fair and legal operations with the right policies in place.
If you believe your rights were violated—or need help interpreting USERRA military leave obligations—reach out to Baker Law Group, PLLC. We’re ready to listen, advise, and help you take the next step toward resolution.
