You asked: “Are we allowed to request military orders from an employee who is taking military leave for National Guard Duty?”
Laura answers: An employer can certainly request military orders from an employee taking military leave. However, you cannot REQUIRE that the employee provide them. There are times when military personnel will not be able to provide written orders, depending on military need and the circumstances of the military duty. Therefore, the law prohibits employers from requiring employees to provide those orders.
National Guard and Reserve members are usually encouraged by their units to provide a copy of orders and/or annual drill schedules to employers as soon as they have them. In most cases, they have those orders in hand before start of the military duty. However, there are times when they will not be able to produce written orders.
If the employee has not produced documentation, the employer is still obligated to follow the provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA) and state law. For example: Upon return from military leave, an employee who was not able to provide documentation of military orders before leave must be reinstated, according to USERRA, into the same or similar position – same status, seniority and pay — pending availability of the documentation. At that point, however, the employer may contact the military unit if necessary.
As more troops return from military service, employers need to be aware of their rights under USERRA and the various state laws that govern reemployment of service members. Stay tuned for our next blog post that will answer more questions about these important laws. In addition, we will give employers valuable information addressing some of the employment challenges of returning service members and veterans living with Traumatic Brain Injury (TBI) and/or Post-Traumatic Stress Disorder (PTSD).
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