Military Leave and Reemployment Rights
This page provides an overview of federal and state military leave laws, as they apply to Washington State government agencies and their employees, including information on the federal Uniformed Services Employment and Reemployment Act (USERRA) and the Washington State Military Family Leave Act (MFLA).
It is part of MRSC’s series on Leave Laws and Policies.
Leave for Public Employees
Under Washington law, every state or local government official or employee is entitled to a military leave of absence for a period not to exceed 21 work days (regardless of the scheduled shift. See State Employees v. Personnel Board and AGO 1999 No. 2) during each year, from October 1 through September 30 (RCW 38.40.060).
During military leave, the employee continues to be paid their regular salary. It does not matter whether the person was ordered to undertake military service or training or whether he or she volunteered (RCW 38.40.060).
RCW 73.16.041 provides that if an elected official is a member of a legislative body and is called to active service or training, the legislative body must grant an extended leave of absence for the elected official. The leave of absence that is granted, however, may not exceed the length of the elected official's remaining term of office. In addition, the legislative body may appoint a person to serve as the councilmember or mayor during the official's absence.
Reemployment Rights under USERRA
Under the terms of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301-4335, a person who leaves a civilian job to enter active duty is entitled to return to his or her civilian job after discharge or release from active duty. However, there are five basic eligibility requirements under federal law:
- The person must have been released from service under honorable conditions and must furnish proof of that release;
- The person must have held a civilian job "other than temporary" at the time he or she entered active duty;
- The employee must have left the civilian job for the purpose of going into active duty, and must have given notice to his or her employer to that effect;
- The employee must apply in writing within 90 days of separation or release from training or service (lesser periods apply when the period of service is 180 days or less); and
- The period of service must not exceed five years.
The reemployment rights are available whether the person is in combat, active duty for training, or inactive duty.
For a full list of USERRA regulations issued from the U.S. Department of Labor, see 20 C.F.R. § 1002.
Notice/Poster Display Requirement for Employers
Federal law requires employers to notify employees of their reemployment and other rights under USERRA. This requirement may be met by displaying the text of the USERRA notice from the U.S. Department of Labor, Veteran’s Employment and Training Service (VETS).
Health Insurance Protection under USERRA
38 U.S.C. § 4317 provides that employees who leave their job to perform military service are entitled to continue their employer-based health insurance coverage for up to 24 months while on military leave.
If the employee opts to not continue health insurance coverage during military leave, the employee is still entitled to be reinstated in the employer's health insurance plan when reemployed without waiting periods or exclusions, except for military service related illnesses or injuries.
Leave for Military Spouses During Deployment
The Washington State Military Family Leave Act (MFLA), chapter 49.77 RCW, provides eligible employees that are the spouse of a member of the armed forces, National Guard, or reserves serving in military conflicts up to 15 days of leave per deployment when the military spouse has been notified of an impending call or order to active duty and before deployment or when the military spouse is on leave from deployment (RCW 49.77.030(1)).
To qualify for the MFLA leave, an employee must work an average of 20 or more hours per week.
An employee seeking to use this leave must notify his or her employer of the intent to use the leave within five business days of receiving official notice of an impending call or order to active duty or of a leave from deployment (RCW 49.77.030(5)).
RCW 49.77.030(6) provides that, although the leave is unpaid, an employee may substitute accrued paid leave for the time off.
Leave for Military Family and/or Caregivers
Under the federal Family and Medical Leave Act (FMLA), 29 C.F.R. § 825, eligible employees are entitled to:
- Up to 26 workweeks of unpaid leave during a 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
- Up to 12 workweeks of unpaid leave during a 12-month period for qualifying exigencies that arise when the eligible employee’s spouse, son, daughter, or parent is on covered duty or has been notified of an impending call or order to covered active duty.
To qualify for the FMLA military leave:
- The employer must have 50 or more employees during 20 or more calendar months working within 75 miles of the employer’s worksite.
- The employee must have worked at least 1,250 hours in the past 12 months (they need to be consecutive).
For further information on the military leave provisions under the FMLA, see the U.S. Department of Labor Wage and Hour Division’s Military Leave fact sheet.
Examples of Local Policies
State and federal law set out the basic requirements, but some local jurisdictions have adopted their own recitations of the law and have provided for other forms of relief for members of the military called into military service and their families.
- Edmonds Municipal Code Ch. 2.36 – Provides for extended benefits beyond the required 21 days of paid military leave by establishing continuation of paid leave for 60 days for a total amount that is the difference between the employee's regular salary and the military service compensation paid. It also offers health benefit payments by the employer for a period of 90 days as long as the employee receives eligible compensation salary.
- Everett Municipal Code Sec. 2.128.080-.120 – Offers a shared leave policy for employees on active military duty.
- Vancouver Military Leave (2022) – Provides that the city will continue health benefit premium payments for 29 consecutive days to eligible employees on military leave. After the 29 days, the employee may self pay premiums for up to 24 months.
- Chelan County Municipal Code Sec. 1.20.840 – Provides that employees returning from military active duty will be treated as though they were continuously employed for purposes of determining benefits based on length of service.
- U.S. Department of Labor Veteran's Employment and Training Service (VETS): USERRA Information – Provides access to all USERRA information offered by VETS.
- U.S. Department of Labor elaws: USERRA Advisor – Interactive tool that offers detailed legal guidance to employers and employees on USERRA.
- U.S. Department of Labor Wage and Hour Division: Military Leave Provisions under the FMLA – Provides information and resources on FMLA provisions regarding military leave.
- WA State Department of Labor and Industries: Military Spousal Leave – Offers information on the Washington State Military Family Leave Act.