Military Leave Handbook Statement: Illinois

Author: Amy E. Mendenhall, Marissa L. Dragoo, Corinn Jackson, and Judith A. Paulson, Littler

When to Include This Statement

Illinois employers should consider including this statement in their handbook to educate employees about the availability of military leave and to demonstrate compliance with Illinois' military leave law.

Customizable Handbook Statement

Military Leave

United States Armed Forces and State Militia - Right to Reinstatement

In addition to the military leave rights set forth in the National Handbook, eligible employees who are called to military service may be entitled under Illinois law to reinstatement following military service, including state or federal service or active duty, training or education.

Eligible employees are members of the United States Army, Marines, Navy, Air Force or Coast Guard or state militia called to service by the United States or the State of Illinois. Members of the National Guard are also entitled to leave in accordance with this policy when called to active duty by order of the Governor of Illinois or a governor of any other state.

Employees who leave their position to perform military service will be eligible for reinstatement to their former position, with the same status, seniority and wage increases that were earned during the term of military service by employees in like positions, or to a position of like seniority, status and pay, as long as:

  • Their position with the Company was not temporary;
  • They received an honorable discharge or a satisfactory completion of military service;
  • They are still qualified to perform the duties of their position; and
  • They apply for reemployment within 90 days after leaving service or a hospitalization (so long as the hospitalization did not continue for more than one year following discharge).

If the Company's circumstances have changed, making it impossible or unreasonable to reinstate an employee, at the employee's request, the employee may be restored to another available position for which he or she is able or qualified to perform the duties.

If employees are otherwise qualified for reemployment, but are not qualified to perform the duties of the position they left to enter military service due to a disability sustained during such service, but are qualified to perform the duties of any other position, they may be reassigned to another position for which they are qualified and that will provide similar seniority, status and pay.

Employees who leave employment to begin military service but are rejected for lacking proper qualifications are also entitled to restoration to their former position as described above, provided they are qualified to perform the job duties and reapply within 90 days of receiving the official notice of rejection.

Employees who are reemployed following military leave will be treated as having been on a leave of absence during military service and will be restored without loss of seniority. In addition, returning employees are entitled to participate in any insurance and other benefits that are provided by the Company to employees with similar seniority, status and pay who are on a leave of absence.

Employees who are reinstated following military service in accordance with this policy will not be terminated without cause for one year following reemployment.

Illinois National Guard

In addition to the leave rights for National Guard members described above, regular full- and part-time (i.e., nontemporary) employees who are members of the National Guard and are called to state active duty are entitled to reinstatement upon return from state active duty, unless reemployment is impossible or unreasonable because of changed circumstances, reemployment presents an undue hardship for the Company or the position the individual held before leaving to serve was for a brief, non-recurrent period.

Unless one of these exceptions applies, the Company will reinstate employees, as long as: the employee's active state service was terminated under honorable conditions or was otherwise satisfactory, and the employee applies for reemployment in accordance with the following timetable:

  • For individuals whose period of service was fewer than 31 days, not later than the beginning of the first full regularly scheduled work period on the first calendar day following the completion of the period of service, safe transport to the individual's residence and an additional eight-hour period;
  • For individuals whose period of service was more than 30 but fewer than 180 days, not later than 14 days after completion of the period of service;
  • For individuals whose period of service was for 180 days or more, not later than 90 days after the completion of the period of service; and
  • For individuals hospitalized for or convalescing from an illness or injury incurred in or aggravated during the period of military service, generally two years after the completion of the period of service.

Exceptions to the above timing requirements will apply when providing notice is either impossible or unreasonable through no fault of the employee. In those cases, notice must be provided as soon as possible.

Employees who fail to report or apply for reemployment in accordance with the above timing requirements do not automatically lose the right to reinstatement. Such employees will be subject to Company policies and procedures regarding reinstatement.

Employees returning from state active duty must provide the Company with documentation that their application is timely and the service was completed under honorable or otherwise satisfactory conditions. The Company will not deny reemployment to employees who fail to meet the documentation requirement if the failure occurs because such documentation does not exist or is not readily available at the time of the request. If, however, documentation becomes available subsequent to reemployment establishing that the requirements outlined above were not met, the Company may terminate the employment relationship and any benefits provided.

Upon return, employees will be reinstated to their former position, with the same status, seniority and wage increases that were earned during military service by employees in like positions, or to a position of like seniority, status and pay. An employee who is reemployed following military leave will be treated as having been on a leave of absence during military service and will be restored without loss of seniority. In addition, employees will be entitled to participate in insurance or other benefits offered by the Company in accordance with the established rules and practices regarding employee leaves of absence in effect at the time the employee was ordered to National Guard service.

Employees who are reinstated following state active duty in accordance with this policy will not be terminated without cause for one year following reemployment.

Guidance for Employers

  • This statement is intended to be used together with a federal Military Leave policy statement.
  • Illinois has two different military leave and job protection laws.
  • Under Illinois' Service Member's Employment Tenure Act (SMETA), service members who leave employment and enter military service must be restored to the position of employment that they left, with the same increases in status, seniority and wages that were earned during the term of military service by employees in like positions, or to a position of like seniority, status and pay, as long as the servicemember:
    • Received an honorable discharge or satisfactory completion of military service;
    • Is still qualified to perform the duties of the position; and
    • Applies for reemployment within 90 days after he or she leaves military service or leaves hospitalization continuing after military discharge for a period of not more than one year.
  • For purposes of the SMETA, "military service" means state or federal service or active duty with any branch of service, training or education under the supervision of the United States (preliminary to induction into the military service), active duty with the State of Illinois pursuant to orders of the President of the United States or Governor of Illinois and active duty by members of the National Guard called to active duty by the Governor of Illinois.
  • Protected servicemembers include all members of the United States Army, Marines, Navy, Air Force and Coast Guard, and all members of the state militia called into service by the United States or by the State of Illinois.
  • If an employee is otherwise qualified for reemployment but is not qualified to perform the duties of the position that he or she left to enter military service due to a disability sustained during such service, but is qualified to perform the duties of any other position, the employee may be reassigned to another position for which he or she is qualified and that will provide like seniority, status and pay.
  • Employees who leave employment to begin military service but who are rejected for lacking proper qualifications are also entitled to restoration to their former position as described above, provided they are qualified to perform the job duties and reapply within 90 days of receiving the official notice of rejection.
  • Restoration to the employee's former job position is required unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so.
  • Any person who is reinstated after military service, including state active duty, must be considered as having been on furlough or leave of absence during his or her military service and must be restored without loss of seniority. The employee is entitled to participate in insurance and other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time the employee entered military service.
  • If an employer provides health insurance, an exclusion or waiting period may not be imposed for coverage of a health or physical condition of an employee returning from military leave (or any other person who is covered by the insurance) if:
    • The condition arose before or during that person's period of military service;
    • An exclusion or waiting period would not have been imposed for the condition during a period of coverage resulting from participation by that person in the insurance; and
    • The condition of that person has not been determined to be service-connected.
  • The Illinois National Guard Employment Rights Law (INGERL) provides job protection for members of the National Guard who return to civilian employment upon completion of state active duty.
  • Employees who are called to state active duty as members of the National Guard, voluntarily or involuntarily, or who are rejected, are entitled to certain reemployment rights and benefits, provided they have given advance notice of the service, if possible; have served honorably; and have submitted an application for reemployment according to the timetable established by the law and set forth in the policy statement.
  • Although employers may require that employees provide documentation to show the reinstatement eligibility requirements are met, the failure to provide such documentation may not be the basis for denying reemployment if the failure occurs because the documentation does not exist or is not readily available at the time of the employer's request.
  • Employees who are entitled to reemployment must be restored to their former position, with the same status, seniority and wage increases that were earned during military service by employees in like positions who did not take military leave, or to a position of like seniority, status and pay, unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so.
  • Employers are not required to reemploy a servicemember if:
    • The employer's circumstances have so changed as to make it impossible or unreasonable;
    • Reemployment would impose an undue hardship on the employer; or
    • The employment was for a brief, non-recurrent period and there was no reasonable expectation that the employment would continue indefinitely or for a significant period.
  • Reinstated employees may not be terminated without cause for one year following reemployment.
  • Under Illinois law, if an employer has made an offer of employment to an individual, but the individual is called to active duty in the National Guard or to active military duty pursuant to a declaration of war by Congress or the President under the War Powers Act or by the Governor during the time of a declared emergency or civil insurrection before the date on which the individual's employment was to have begun, then the employer, upon the individual's request, must provide the individual with a written copy of the employment offer. The written copy of the employment offer must include at least the following:
    • A statement repeating the offer of work and the date on which the services were to be first performed;
    • A statement describing the job title or duties to be performed;
    • A statement showing the remuneration offered; and
    • The employer's signature.
  • If an individual, upon honorable discharge from the military or satisfactory completion of military service, is still qualified to perform the duties of the position for which he or she was first offered employment, and if the individual reapplies within 90 days after being relieved from military service, then the individual must be given preference for employment with that employer. If circumstances have so changed as to make it impossible or unreasonable for the employer to employ the individual immediately, the individual must remain eligible to begin such employment for a period of up to one year after the date the individual first notified the employer of his or her desire to return to employment. This does not apply if the original offer of work was limited to part-time employment, temporary employment or casual labor. Further, employers are not required to hold a position open, create additional employment or violate any employment law or collective bargaining agreement.
  • Maintain documentation of any impending military leaves. If an employee gives oral notice of an impending military leave, an employer should document such notice and place it in the employee's file. Human Resources should inform all managers and supervisors that they must forward any written notice, and communicate any oral notice, of an employee's pending military leave to the Human Resources department or other appropriate company representative or department. Employers should remember, however, that under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), written or oral notice of military leave is sufficient to meet the employee's obligation to inform the employer of the need for military leave.
  • Supervisors should be trained regarding how to respond to requests for military leave so that they do not take any adverse actions (e.g., termination, demotion) against employees who are eligible for leave and who request or take leave.

Additional Resources

Military Leave Handbook Statement: Federal