How Can Employers Support Workers in the National Guard and Reserve?

​As more U.S. troops are deployed to Europe amidst the conflict in Ukraine, employers should have a plan to support employees who are in the National Guard and Reserve and may need to take leave.

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While military service is the full-time job of active members of the U.S. armed forces, National Guard and Reserve members generally pursue civilian jobs and dedicate one weekend a month and two weeks every summer to training.

Employers should note that National Guard and Reserve members can be called into full-time service at any time.

"We owe a profound gratitude to our National Guard and Reserve members, as well as their civilian employers," said President Joe Biden during National Employer Support of the Guard and Reserve Week in August 2021. He said employers who support such workers "directly contribute to our military readiness and our national security."

How should businesses prepare as service members are called to duty? Gregory Murray, an attorney with Fisher Phillips in Detroit, said employers need to be aware of the protections afforded to employees who are called to duty in the armed services and the minimal notice that employers may receive before leave begins.  

Raanon Gal, an attorney with Barnes & Thornburg in Atlanta, suggested that employers train managers so they understand military leave rules.

Here are some additional tips for employers to keep in mind.

Treat Workers Fairly

Employers should be aware of the assistance that is available to them through the Employer Support of the Guard and Reserve (ESGR), Murray noted. The ESGR is a Department of Defense organization that was established to promote cooperation and understanding between service members and their civilian employers and to assist in the resolution of conflicts arising from the employee's military commitment. 

"ESGR has served our country for more than 45 years, fostering a culture in which all employers support and value the employment and military service of members of the National Guard and Reserve in the United States," the ESGR said on its website.

Gal noted that employees should not be treated negatively when they return from service.

Employers should also consult experienced legal counsel before making any adverse decisions related to a worker's military status, including requirements for notice before leave, granting leave, returning employees to work following a leave, health care coverage and other benefit rights that apply during a leave, Murray said.

Job Protections

Employees who take time off for military service or training have certain job protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA), and USERRA may provide more-expansive rights than other employment laws.

Employers should review both their Family and Medical Leave Act (FMLA) and USERRA obligations (and required forms), as they offer different types of protected leave, Gal explained. Protected leave under USERRA is not just for the actual military member, he noted. It also covers some family members who are affected by the employee's military leave.

"Many employers do not realize that USERRA applies even if they employ only a few employees," observed Elizabeth Voss, an attorney with Dykema in Dallas. Some employment laws don't apply to small businesses. For instance, Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act cover employers with 15 or more employees, and the FMLA covers businesses with at least 50 employees. USERRA, however, covers all employers.

USERRA's notice and documentation rules are significantly different from the FMLA's requirements, Voss noted. Under USERRA, employees are generally required to provide their employers with advance notice of their leave unless notice is impossible, unreasonable or otherwise can't be given because of military necessity.

While the regulations strongly recommend that employees provide at least 30 days of advance notice, no specific amount is mandated. The notice may be provided by the employee or an authorized military officer and doesn't need to be in any particular format (such as in writing).

Employers may be surprised to learn that they typically can't require employees to provide their military orders or other documents before granting a military leave of absence, Voss said. An employer is allowed to require documentation, however, if the employee applies for reinstatement after a military leave of absence that exceeded 30 days.

"Many state laws also provide additional protection for employees serving in the uniformed services," Murray said. As an example, he pointed to Michigan's rules, which are available on the state's website.

'Many Civilian Employers Go Above and Beyond'

Employers can offer service members benefits that are more generous than federal and state laws mandate. While not required, Gal noted, employers can offer the difference between military pay and the employee's regular salary.

"As our Guard and Reserve members navigate the challenges that accompany their service, many civilian employers go above and beyond to support our service members and their families," Biden said. "National Guard and Reserve members should not have to worry about their civilian employment while they are serving on a mission, and many employers are stepping up with generous pay and leave policies, extension of benefits like health care for family members, and flexibility and support for Guard and Reserve spouses to help fulfill our sacred obligation as a nation to always take care of those who serve in uniform."

How can you help? The International Committee of the Red Cross remains active in Ukraine, saving and protecting the lives of victims of armed conflict and violence. Its neutral and impartial humanitarian action supports the most vulnerable people, and your donation will make a huge difference to families in need right now. Donate here.​