The Act applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA.
Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.
Whos eligible for reemployment?
Reemployment rights extend to persons who have been absent from a position of employment because of "service in the uniformed services." "Service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service, including:
- Active duty
- Active duty for training
- Initial active duty for training
- Inactive duty training
- Full-time National Guard duty.
- Absence from work for an examination to determine a persons fitness for any of the above types of duty.
- Funeral honors duty performed by National Guard or reserve members
The "uniformed services" consist of the following:
- Army, Navy, Marine Corps, Air Force, or Coast Guard.
- Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve.
- Army National Guard or Air National Guard.
- Commissioned Corps of the Public Health Service.
- Any other category of persons designated by the President in time of war or emergency.
The law requires all employees to provide their employers with advance notice of military service.
Notice may be either written or oral. It may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving. However, no notice is required if:
- military necessity prevents the giving of notice; or
- the giving of notice is otherwise impossible or unreasonable.
Duration of Service
The cumulative length service that causes a persons absences from a position may not exceed five years. Most types of service will be cumulatively counted in the computation of the five-year period.
Exceptions. Eight categories of service are exempt from the five-year limitation. These include:
- Service required beyond five years to complete an initial period of obligated service. Some military specialties, such as the Navys nuclear power program, require initial active service obligations beyond five years.
- Service from which a person, through no fault of the person, is unable to obtain a release within the five year limit . For example, the five-year limit will not be applied to members of the Navy or Marine Corps whose obligated service dates expire while they are at sea. Nor will it be applied when service members are involuntarily retained on active duty beyond the expiration of their obligated service date (STOPLOSS).
- Required training for reservists and National Guard members . The two-week annual training sessions and monthly weekend drills mandated by statute for reservists and National Guard members are exempt from the five-year limitation. Also excluded are additional training requirements certified in writing by the Secretary of the service concerned to be necessary for individual professional development.
- Service under an involuntary order to, or to be retained on, active duty during domestic emergency or national security related situations.
Service under an order to, or to remain on, active duty (other than for training) because of a war or national emergency declared by the
President or Congress. This category includes service not only by persons involuntarily ordered to active duty, but also service by volunteers who receive orders to active duty.