If an employee of your company is part of the military, you should be proud of this person’s bravery and patriotism. At the same time, if this person is taking a “military leave” you need to know your rights as an employer as well as any laws that govern the decisions you can make.
The first thing you should do is become familiar with the Uniformed Services Employment and Reemployment Rights Act (USERRA). In short, this protects any employee who gives proper notice of a military-related absence from discrimination or retaliation. Furthermore, it provides reemployment rights for up to five years.
Generally, as far as pay goes, public employers are required to pay military personnel while on duty or at least the difference between military pay and public employment pay. Private employers are not required to pay military personnel while on leave. Some private employers choose to continue paying them, but it is not required by law.
There are other aspects of military leave. For example, it generally is true that the employer is entitled to advance notice of the leave. That notice is not mandatory if military necessity requires emergency deployment.
In addition to federal USERRA, employers need to consult their state for additional guidelines that might apply to military pay and employment.
The federal government recognizes the hardship that a military deployment might have on a small organization, so it makes a loan program available to bridge the gap.
"Recognizing the impact that losing a key employee may have on a small business, the Small Business Administration (SBA) offers the Military Reservist Economic Injury Disaster Loan (MREIDL) Program. Under this program, the SBA provides low interest loans to small businesses when they are unable to meet their ordinary and necessary operating expenses and financial obligations because an essential employee is called to active military duty from the reserves."
With all of this in mind, the USERRA does not require that employers continue to pay the employee during military-related absence. Additionally, the employer is not prohibited by law to require the employee to use accrued paid time off for the military leave. That being said, the employer is required by law to allow the use of paid time off if the employee is interested in this option.
This situation can become slightly more confusing when comparing non-exempt hourly employees to exempt salaried employees.
With a non-exempt hourly employee, you are only required to pay the employee for the hours worked. This is straightforward and simple to understand.
On the other hand, if an exempt salaried employee works any portion of the workweek, regardless of how long, the employer is required to pay the full weekly salary, according to The Society for Human Resource Management.
If you find your company faced with this situation, be sure to know your rights as an employer as well as the laws governing military leave. Doing so will allow the company and the employee to remain on good terms while this person serves the country. Upon returning from military leave, there is a good chance the employee will be able to rejoin the company.