§4316 Rights, Benefits, and Obligations of Persons Absent From Employment for Service in a Uniformed Service

Summary

When someone returns to a job after serving in the uniformed services, they must get back the seniority and the seniority-based rights they had before. They also must get any extra seniority and seniority-based rights they would have earned if they had stayed on the job without a break. While away for service, the person is treated like they are on furlough or leave and must get the same non-seniority benefits other employees with similar rank, status, and pay receive under the employer’s rules in effect when the service began or rules made while they were serving. If the person gives clear written notice that they do not plan to return, the employer does not have to provide those leave benefits; the employer must prove the notice was knowingly given and that the person understood which benefits they would lose. The person cannot get benefits they would not have had if they had stayed continuously employed. They may have to pay the employee share of continued funded benefits to the same extent other furloughed employees pay. Rules about health plan coverage are under section 4317 and pension plan coverage is under section 4318. A reemployed person cannot be fired without cause for one year after returning if their service before return was more than 180 days, or for 180 days if their service was more than 30 days but less than 181 days. While serving, a person may use any vacation, annual, or similar paid leave they had accrued before service, if they ask; the employer cannot force them to use it. Employers must give reserve members authorized leave to perform funeral honors duty under 10 U.S.C. 12503 or 32 U.S.C. 115, and taking that leave counts as notifying the employer that the employee intends to return.