Military Leave Handbook Statement: Illinois

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

When to Include

Illinois employers should consider including this statement in their handbook to educate employees about the availability of military leave and to demonstrate compliance with the Illinois Service Member Employment and Reemployment Rights Act (ISERRA).

ISERRA defines an employer as any person, institution, organization or other entity that pays salary or wages for work performed or that has control over employment opportunities, including:

  • A person, institution, organization or other entity to whom the employer has delegated the performance of employment-related responsibilities;
  • An employer of a public employee;
  • Any successor in interest to a person, institution, organization or other entity referred to under this definition; and
  • A person, institution, organization or other entity denied initial employment in violation of the federal Uniformed Services Employment and Reemployment Rights Act's (USERRA) antidiscrimination and antiretaliation provisions.

Customizable Handbook Statement

Military Leave

In addition to the military leave rights set forth in the National Handbook and subject to the additional provisions set forth in the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) and described in this policy, members of the US Armed Forces, the National Guard of any state or territory regardless of status and the Illinois State Guard, as well as those serving in a federally recognized auxiliary of the United States Armed forces and performing official duties in support of military or civilian authorities as a result of an emergency, are entitled to the rights, protections, privileges and immunities provided under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and described more fully in the Military Leave policy set forth in the National Handbook.

Employees are entitled to a military leave of absence for active service in accordance with this policy so long as they provide advance notice of pending military service.  There may be an exception to this advance notice requirement based on military necessity, as determined by the appropriate state military authority. For purposes of this policy, "military service" includes:

  • Service (active or reserve) in the US Armed Forces, the National Guard of any state or territory regardless of status, and the Illinois State Guard;
  • Service in a federally recognized auxiliary of the US Armed Forces when performing official duties in support of military or civilian authorities as the result of an emergency; and
  • A period during which an employee is absent from employment for the purpose of medical or dental treatment for a condition, illness or injury sustained or aggravated during a period of active service and the treatment is paid for by the US Department of Defense Military Health System.

Also for purposes of this policy, "active service" means all forms of active and inactive duty (without regard to voluntariness), including, but not limited to:  annual training, active duty for training, initial active duty training, overseas training duty, full-time National Guard duty, active duty other than training, state active duty, mobilizations and muster duty. Active service includes active service without pay.

The Company may require additional documentation from an appropriate military authority for leave due to performance of official duties in support of military or civilian authorities as the result of an emergency or for the employee's medical or dental treatment.

Employees requesting leave are not required to find an employee to cover their work when they take leave under this policy.  Employees taking military leave are also not required to accommodate work-related needs pertaining to the timing, frequency or duration of their leave.  The Company may bring concerns over the timing, frequency or duration of military leave to the attention of the appropriate military authority, but understands that accommodation of these concerns is subject to military law and the discretion of that military authority.

Accrued, unused vacation or PTO will be paid during military leave at the employee's request.

Reinstatement

In order to be eligible for reinstatement, an employee must have completed his or her service on a basis that is not dishonorable or otherwise prohibited under federal or state law. A retroactive upgrade of a disqualifying discharge or release will restore reemployment rights, provided the service member employee otherwise meets the eligibility criteria under ISERRA.

An employee who is absent on military leave will, for the period of leave, be credited with the average of the efficiency or performance ratings or evaluations received for the three years immediately prior to the absence for military leave. The rating will not be less than the rating that the employee received for the rated period immediately prior to his or her absence on military leave. Except for during probationary periods, the period of military leave will also be counted in computing seniority and time-in-service requirements for promotion eligibility or any other benefit of employment.

Guidance for Employers

  • This statement is intended to be used together with the federal Military Leave policy statement.
  • The Illinois Service Member Employment and Reemployment Rights Act (ISERRA) incorporates several provisions of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and then adds several additional terms. 
  • For purposes of ISERRA, "military service" means:
    • Service in the US Armed Forces, the National Guard of any state or territory regardless of status, and the State Guard as defined in the Illinois State Guard Act;
    • Service in a federally recognized auxiliary of the US Armed Forces when performing official duties in support of military or civilian authorities as a result of an emergency; and
    • A period for which an employee is absent from a position of employment for the purpose of medical or dental treatment for a condition, illness, or injury sustained or aggravated during a period of active service in which treatment is paid by the US Department of Defense Military Health System.
  • ISERRA covers all employees in military service. ISERRA defines an employee as anyone employed by an employer, including any person who is a US citizen, national or permanent resident alien employed in a workplace that the state has legal authority to regulate business and employment. An employee does not include a properly classified independent contractor.
  • In a time of national or state emergency, the governor has the authority to designate any category of persons as entitled to ISERRA protections.
  • Under the ISERRA, an employer may not impose conditions for military leave, such as work shift replacement, not otherwise imposed under ISERRA or other applicable law. However, an employer may provide scheduling options to employees in lieu of paid military leave.
  • "Military leave" for purposes of ISERRA means a furlough or leave of absence while performing active service. Military leave cannot be substituted for accrued vacation, annual, or similar leave with pay except at the employee's sole discretion. It is not a benefit of employment that an employee must request, but a legal requirement upon receiving notice of pending military service.
  • For purposes of ISERRA, "active service" means all forms of active and inactive duty regardless of voluntariness including, but not limited to, annual training, active duty for training, initial active duty training, overseas training duty, full-time National Guard duty, active duty other than training, state active duty, mobilizations, and muster duty. "Active service", unless provided otherwise, includes active service without pay. "State active duty" means full-time state-funded military duty under the command and control of the Governor and subject to the Military Code of Illinois.
  • A service member employee is not required to accommodate his or her employer's needs as to the timing, frequency, or duration of military leave. However, employers are permitted to bring concerns over the timing, frequency, or duration of military leave to the attention of the appropriate military authority. Accommodation of these requests is subject to military law and discretion.
  • Military necessity is determined as an exception to advance notice of pending military leave for state active duty by an appropriate state military authority and is not subject to judicial review.
  • For purposes of notice of pending military service related to service in a federally recognized auxiliary of the US Armed Forces or related to treatment for a condition, injury or illness sustained or aggravated during active service, an employer may require notice by appropriate military authority on official letterhead. Notice exceptions do not apply.
  • In addition to reinstatement rights under USERRA, under ISERRA, employers must credit service members absent on military leave with the average of performance ratings or evaluations received for the three years immediately prior to the service member's military leave. The rating must not be less than the rating that he or she received for the rated period immediately prior to the military leave. Employers must count seniority and service requirements for promotions or other benefit as civilian service.
  • A disqualifying discharge or separation is the state equivalent under the Military Code of Illinois for purposes of ineligibility for reemployment under USERRA. Retroactive upgrades of a disqualifying discharge or release will restore employment rights if the service member otherwise meets ISERRA eligibility criteria.
  • ISERRA incorporates the anti-discrimination provisions of USERRA section 4311 and its accompanying regulations. Additionally, under the Illinois Human Rights Act (IHRA), employers with 15 or more employees may not discriminate against an individual based upon his or her military or reserve status or unfavorable military discharge. The term "military status" includes National Guard members and reservists in addition to those in the active military service. "Unfavorable" means a discharge that is less than honorable but not dishonorable.
  • Employers must provide a notice of ISERRA's rights, benefits, and obligations to all employees entitled to ISERRA rights and benefits. Employers may comply with the notice requirement by posting the notice in the employer's customary place for notices to employees, rather than by individual distribution. 
  • 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 that under 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