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What Are Your Military Leave Rights in New York?

New York service members have employment protections under both federal and state law. If you serve in the U.S. military (active duty, National Guard, or Reserves), your civilian job is protected when you’re called to duty, and you have rights to reemployment when you return.

Federal USERRA (Uniformed Services Employment and Reemployment Rights Act) provides the foundation for military leave rights nationwide. New York Military Law adds state-level protections that often exceed federal minimums, including paid leave for certain types of service and enhanced job protection.

Whether you’re activated for federal deployment, state emergency response, or training exercises, you have the right to return to your civilian job without penalty. Understanding these protections ensures your service doesn’t cost you your career.

Why New York Military Leave Matters

Military service members face unique employment challenges. Being called to duty can mean leaving your job for weeks, months, or years. Without legal protections, service members would face impossible choices between serving their country and keeping their civilian careers.

The protections exist because:

  • Service is involuntary when you’re activated or deployed
  • Employers cannot penalize you for fulfilling military obligations
  • Service members need economic security for themselves and their families
  • Military readiness depends on protecting civilian employment

New York’s military leave laws help service members:

  • Keep their civilian jobs during and after military service
  • Receive pay during certain types of leave (New York adds paid leave beyond federal requirements)
  • Return to work without loss of seniority, pay, or benefits
  • Access additional family leave when service members deploy
  • Protect against discrimination based on military service

Over 25,000 New York National Guard members and many more Reservists rely on these protections. Without them, service members would face financial ruin when called to serve.

Federal USERRA: The Foundation

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the primary federal law protecting service members’ employment rights.

Who USERRA Covers

Protected service members:

  • Active duty military (Army, Navy, Air Force, Marines, Space Force, Coast Guard)
  • National Guard (activated for federal or state service)
  • Reserves
  • Commissioned officers of the Public Health Service
  • Anyone ordered to active duty, active duty for training, inactive duty training, or examinations to determine fitness for duty

“Uniformed service” includes:

  • Active duty deployments
  • Training exercises (annual training, drill weekends)
  • Fitness examinations
  • Funeral honors duty
  • Federal emergency responses

Nearly all military-related absences trigger USERRA protections.

What USERRA Protects

USERRA provides:

  • Reemployment rights after service (if you meet requirements)
  • Protection from discrimination based on military service
  • Protection from retaliation for asserting USERRA rights
  • Continuation of health insurance during service (up to 24 months)
  • Accrual of certain benefits during service

Key principle: You must be restored to the position you would have held if you’d never left (the “escalator principle”). If you would have been promoted, you get the promotion. If the position was eliminated, you get a comparable position.

USERRA Reemployment Requirements

To qualify for reemployment rights under USERRA, you must:

1. Give advance notice (written or verbal) to your employer before leaving for service (unless military necessity prevents notice or notice is impossible)

2. Serve for no more than 5 years cumulatively with that employer (some exceptions apply, like involuntary extensions or service for training)

3. Return to work or apply for reemployment within specific deadlines:

  • Service less than 31 days: Report to work by the start of the first full workday after 8 hours of travel time
  • Service 31-180 days: Apply for reemployment within 14 days after completing service
  • Service 181+ days: Apply for reemployment within 90 days after completing service

4. Receive an honorable discharge or separation (dishonorable discharges disqualify you from USERRA protections)

5. Have not exceeded the 5-year cumulative service limit with that employer

Example: Kevin serves in the National Guard and is deployed to Kuwait for 11 months. He notifies his employer before leaving. He’s honorably discharged and returns. He applies for reemployment within 90 days. He meets all USERRA requirements and must be reemployed.

Example: Lisa attends 2-week annual training. She notifies her employer. After training, she returns to work the next scheduled workday. She meets all requirements.

What Happens When You Return

Your employer must:

  • Restore you to your previous position or the position you would have held (the “escalator position”)
  • Give you the same seniority, status, and pay you would have earned
  • Restore accrued benefits
  • Treat your service time as continuous employment for benefits purposes (in most cases)

Your employer cannot:

  • Demote you because you served
  • Reduce your pay or benefits
  • Require you to “re-earn” your previous position
  • Treat your absence as a break in service for most purposes

Escalator principle example: Marcus is a sales associate when he’s deployed. While he’s deployed, the company promotes all associates with his tenure to senior sales associate. When Marcus returns, he must be promoted to senior sales associate—the position he would have held if he’d never left.

New York Military Law: Enhanced State Protections

New York Military Law (Article 7-A and related provisions) provides additional protections beyond federal USERRA.

Paid Military Leave in New York

Unlike federal law (which is unpaid), New York requires employers to provide paid military leave in specific situations.

Public employees (state, county, city, or political subdivision):

  • Up to 30 days of paid leave per calendar year for ordered military duty (training or active service)
  • Up to 22 workdays additional paid leave per calendar year for state active duty (like emergency response)

Private employers with 20+ employees:

  • No specific paid leave requirement under state law (though some provide it voluntarily)

Private employers with fewer than 20 employees:

  • No paid leave requirement

This means New York public sector workers receive substantial paid military leave, far exceeding what federal law requires (which is unpaid).

Example: Officer Torres is a New York State Trooper and Army Reserve member. He’s ordered to 2-week annual training. He receives his full state trooper salary during those 2 weeks (up to 30 days per year). This is paid leave under New York Military Law.

Example: Firefighter Martinez serves in the New York National Guard and is activated for state emergency response (flooding disaster). He receives up to 22 additional workdays of paid leave for this state active duty.

New York Military Leave Notice Requirements

New York law requires employers to provide written notice of military leave rights.

Employers must:

  • Post notice of military leave rights where employees can see it
  • Provide written notice to any employee who will be absent for military service

Failure to provide notice doesn’t eliminate the employee’s rights, but violates state law.

Protection Against Discrimination

New York law prohibits discrimination based on military status.

Employers cannot:

  • Refuse to hire someone because they’re in the military
  • Fire or discipline someone because of military service or membership
  • Deny benefits or opportunities because of military obligations
  • Retaliate against someone for asserting military leave rights

This applies to all employers, regardless of size, under New York Human Rights Law.

Example: Rita applies for a job. During the interview, she discloses she’s in the Army Reserve and has drill weekends once per month. The employer doesn’t hire her, stating “we need someone who will always be available.” This is illegal discrimination based on military status.

New York State Active Duty Protections

When the Governor activates the National Guard for state emergencies (floods, storms, civil unrest, etc.), New York law provides specific protections.

“State active duty” includes:

  • Response to natural disasters
  • Civil disturbance response
  • Security operations
  • Training directly ordered by the Governor or Adjutant General

During state active duty:

  • Your civilian job is protected (reemployment rights)
  • Public employees receive paid leave (up to 22 workdays per year in addition to the 30 days for federal service)
  • You cannot be terminated for the absence

Example: During severe flooding in 2023, the Governor activated the National Guard. Sergeant Williams, a public school teacher, was activated for 10 days. He received paid leave from the school district for those 10 days under state active duty provisions. His teaching position was held for him.

Types of Military Leave and Your Rights

Different types of military service trigger different rights and notice requirements.

Active Duty Deployment

What it is: Full-time service for extended periods (typically 6 months to over a year)

Your rights:

  • Full USERRA protections (reemployment, benefits, seniority)
  • Continuation of health insurance for up to 24 months (you pay premiums)
  • Return to escalator position
  • Apply for reemployment within 90 days of discharge

Notice: Provide as much advance notice as possible (written or verbal)

Example: Captain Rodriguez is deployed to Afghanistan for 12 months. She notifies her employer before deploying. After returning and being discharged, she applies for reemployment within 90 days. Her employer must restore her to the position she would have held if she’d never left.

Annual Training (AT)

What it is: Typically 2 weeks per year of required training for Guard and Reserve members

Your rights:

  • USERRA protections
  • Public employees in NY receive paid leave (within 30-day annual limit)
  • Return to work by first full workday after 8 hours of travel time if service is under 31 days

Notice: Provide advance notice (typically you know AT dates months ahead)

Example: Sergeant Williams attends 2-week annual training in July. He notifies his employer in April. He receives paid leave (he’s a public employee). He returns to work the Monday after AT ends.

Inactive Duty Training (IDT) – Drill Weekends

What it is: Monthly drill weekends (typically one weekend per month)

Your rights:

  • USERRA protections
  • Return to work by first full workday after 8 hours of travel time
  • Cannot be penalized for these absences

Notice: Provide advance notice (drill schedules are usually known in advance)

Most private employers do not pay for drill weekends, but your job is protected.

Example: Specialist Chen drills one weekend per month (Saturday-Sunday). He returns to his civilian job on Monday. His employer cannot count these absences against him or deny promotions because of drill obligations.

Fitness Examinations and Funeral Honors

What it is: Medical examinations to determine fitness for duty, or serving on military funeral honor guard

Your rights:

  • USERRA protections
  • Time off cannot be denied or penalized

Example: Officer Jackson is called for a military fitness examination on a Tuesday. He notifies his employer and takes the day off. His employer cannot deny this time off or count it against him.

Emergency State Active Duty

What it is: National Guard activation by the Governor for state emergencies

Your rights:

  • Reemployment protections under NY Military Law
  • Public employees receive paid leave (up to 22 workdays per year for state active duty)
  • Private employees receive unpaid, job-protected leave

Example: During a blizzard, Sergeant Martinez (a city sanitation worker and National Guard member) is activated for snow removal support. He’s on state active duty for 5 days. He receives paid leave from the city. His civilian job is protected.

Paid Family Leave for Military Families

New York Paid Family Leave (NYPFL) provides additional benefits for military families.

Military Qualifying Exigencies

If your spouse, child, or parent is deployed, you can take up to 12 weeks of NYPFL for “qualifying exigencies.”

Qualifying exigencies include:

  • Short-notice deployment (7 days or less notice)
  • Military events and related activities
  • Childcare and school activities
  • Financial and legal arrangements
  • Counseling
  • Rest and recuperation (R&R) during deployment
  • Post-deployment activities
  • Parental care (arranging care for military member’s parent)

Payment: 67% of your average weekly wage, up to $1,131.08 per week (2025)

Duration: 12 weeks per year

This is separate from the service member’s own leave rights. This covers the family member’s time off to handle issues related to the service member’s deployment.

Example: Alicia’s husband deploys to Iraq with 4 days’ notice. She takes 2 weeks of NYPFL to handle financial arrangements, attend the deployment ceremony, and arrange childcare for their two kids. She receives 67% pay during this leave.

Example: Marcus’s wife is deployed overseas. She has R&R leave (2 weeks home during a 12-month deployment). Marcus takes 2 weeks of NYPFL to spend time with her during R&R. He receives paid leave for this.

Health Insurance During Military Service

Your health insurance rights depend on the length of your service.

USERRA Health Insurance Requirements

If your service is 30 days or less:

  • Your employer must continue health insurance on the same terms as if you’re still working
  • You pay your usual employee contribution

If your service is 31+ days:

  • You can elect to continue coverage for up to 24 months
  • You pay up to 102% of the full premium cost (employer + employee share)
  • This is similar to COBRA but triggered by military service

Example: Kevin is deployed for 11 months. He elects to continue his employer health insurance. He pays 102% of the full premium ($600/month employer share + $200/month employee share = $800 x 102% = $816/month). This keeps his family covered during deployment.

Reinstatement of Health Insurance

When you return from military service and are reemployed:

  • Your health insurance must be reinstated immediately
  • No waiting periods can be imposed
  • Pre-existing condition exclusions cannot be applied (if related to military service)

Protections Against Discrimination and Retaliation

Federal and state law protect service members from employment discrimination.

Prohibited Discrimination

Employers cannot:

  • Refuse to hire because of military service or membership
  • Deny initial employment because of military obligations
  • Discriminate in pay, promotion, or benefits because of military status
  • Terminate employment because of military service

Example: Rita is in the Army Reserve. During a job interview, she discloses she has drill one weekend per month. The employer says, “We need full-time commitment” and doesn’t hire her. This is illegal discrimination based on military status under both federal and NY law.

Prohibited Retaliation

Employers cannot retaliate against you for:

  • Taking military leave
  • Asserting your USERRA rights
  • Filing a USERRA complaint
  • Participating in a USERRA investigation

Example: Sergeant Martinez files a USERRA complaint because his employer denied reemployment. The employer retaliates by blacklisting him in the industry. This is illegal retaliation.

Termination Protections After Reemployment

USERRA provides special protection against termination after you return from military service.

If you served 31-180 days:

  • Cannot be terminated without cause for 180 days after reemployment

If you served 181+ days:

  • Cannot be terminated without cause for one year after reemployment

“Without cause” means your employer can only fire you for legitimate job performance reasons, not arbitrary or discriminatory reasons.

Example: Captain Rodriguez returns from a 12-month deployment. Her employer reemploys her but fires her 6 months later, claiming “we don’t need your position anymore.” This is illegal—she’s protected for one year and can only be terminated for cause (actual performance issues, not position elimination).

How to Assert Your Military Leave Rights

Knowing your rights is the first step. Asserting them properly protects you.

Step 1: Provide Notice to Your Employer

Give notice as early as possible:

  • Written notice is best (email, letter)
  • Verbal notice is acceptable
  • Include dates of service (if known)
  • Provide orders if available (optional but helpful)

Example notice:
“I am writing to notify you that I have been called to active duty military service with the U.S. Army. My service will begin on March 15, 2025, and is expected to last approximately 12 months. I am providing this notice pursuant to USERRA and New York Military Law. I will provide a copy of my orders upon request. I intend to return to employment upon completion of my service.”

Step 2: Provide Copy of Orders (If Requested)

Your employer can request a copy of your military orders to verify your service.

Provide:

  • Copy of activation orders
  • Training orders
  • Any documentation showing dates and type of service

You’re not required to provide orders for privacy or security reasons, but providing them helps avoid disputes.

Step 3: Keep Documentation

Save copies of:

  • Your notice to your employer
  • Military orders
  • Communications with your employer
  • Discharge papers (DD-214 or equivalent)
  • Any correspondence about reemployment

Step 4: Apply for Reemployment Timely

After completing service, apply for reemployment within the deadlines:

  • Under 31 days: Report to work by first full workday after 8 hours of travel time
  • 31-180 days: Apply within 14 days after service ends
  • 181+ days: Apply within 90 days after service ends

How to apply:

  • Written application is best (email or letter)
  • Include copy of discharge papers
  • State your intent to return to work

Example application:
“I am writing to apply for reemployment following my active duty military service. I was deployed from March 15, 2025, to February 10, 2026. I was honorably discharged on February 10, 2026. I am applying for reemployment within the 90-day deadline required by USERRA. I request reinstatement to my previous position or the position I would have held if continuously employed. Attached is a copy of my DD-214.”

Step 5: Assert Rights If Denied

If your employer denies reemployment, discriminates, or retaliates:

File complaints with:

  • U.S. Department of Labor Veterans’ Employment and Training Service (VETS): Investigate USERRA violations, file complaints at dol.gov/vets
  • New York Division of Human Rights: For discrimination based on military status, file at dhr.ny.gov
  • Contact an attorney: Many attorneys specialize in USERRA and military employment rights

Real-World Military Leave Examples

Example 1: Annual Training – Public Employee
Officer Davis is a New York State Police officer and Army Reserve member. He attends 2-week annual training in June. He provides notice to his supervisor in March. During his 2 weeks of training, he receives his full state trooper salary (paid military leave under NY law for public employees). His position is held, and he returns to work immediately after training.

Example 2: Deployment – Private Employer
Sergeant Williams works as an accountant for a private firm with 100 employees. He’s deployed to Iraq for 12 months. He provides written notice and a copy of orders. During deployment, he elects to continue health insurance (paying 102% of premiums). After 12 months, he’s honorably discharged and applies for reemployment within 90 days. His employer must reinstate him to his previous position or the position he would have attained. He cannot be fired without cause for one year.

Example 3: Drill Weekends
Specialist Chen is a graphic designer and National Guard member. He drills one weekend per month. He provides his annual drill schedule to his employer in January. Every month, he’s absent Saturday and Sunday for drill, returning to work Monday. His employer (a private company) doesn’t pay him for drill weekends, but his job is protected. His employer cannot count drill absences against him under attendance policies.

Example 4: State Active Duty – Emergency Response
Sergeant Martinez is a firefighter and National Guard member. During severe flooding, the Governor activates the National Guard. Martinez is on state active duty for 8 days. As a public employee (firefighter), he receives paid leave for these 8 days (within the 22-day annual limit for state active duty). His firefighter position is held for him.

Example 5: Qualifying Exigency – Spouse Deployment
Alicia’s husband deploys to Afghanistan with 5 days’ notice. Alicia works for a private company with 50 employees. She takes 2 weeks of NYPFL for qualifying exigencies: attending deployment ceremony, meeting with legal assistance to finalize power of attorney, and arranging childcare. She receives 67% pay during these 2 weeks. Her job is protected.

Example 6: Denied Reemployment – USERRA Violation
Captain Rodriguez returns from a 12-month deployment and applies for reemployment within 90 days. Her employer says, “We filled your position and don’t have openings.” This violates USERRA. Rodriguez files a complaint with DOL VETS. The agency investigates and orders the employer to reinstate her to her previous position (or escalator position) with back pay.

Example 7: Discriminatory Hiring
Kevin is interviewing for a job. He discloses he’s in the Army Reserve with monthly drill obligations. The employer says, “We need someone without military commitments.” Kevin isn’t hired. This is discrimination based on military status. Kevin files a complaint with the NY Division of Human Rights. The agency investigates and finds discrimination.

Example 8: Promotion During Deployment
Marcus is deployed for 11 months. While deployed, his employer promotes all employees in his classification with his tenure. When Marcus returns and is reemployed, his employer must promote him to the position he would have held—the escalator principle. Marcus receives the promotion with back pay for any pay differential during the time he should have been promoted.

Example 9: Retaliation After Return
Sergeant Williams returns from deployment and is reemployed. Six months later, his supervisor (who resents his absence) begins writing him up for minor infractions and denies his performance bonus. Williams documents the retaliation and files a complaint. His employer settles, providing back pay for the denied bonus and retraining the supervisor.

Example 10: Fitness Exam
Officer Jackson receives orders for a military fitness examination on a Tuesday. He notifies his employer on Friday. His employer says, “We’re too busy; you can’t take Tuesday off.” Jackson takes the day anyway (it’s protected under USERRA). His employer cannot discipline or terminate him for this absence.

Example 11: Benefits Accrual During Service
Rita serves on active duty for 18 months. Her employer provides pension benefits that vest after 5 years. When Rita returns, her 18 months of service must be counted toward her 5-year vesting period (she doesn’t lose credit during military service). She’s treated as continuously employed for benefits purposes.

Example 12: Health Insurance Continuation
Kevin is deployed for 10 months. He elects to continue his employer health insurance, paying 102% of the full premium. His family remains covered during deployment. When he returns and is reemployed, coverage is reinstated immediately with no waiting period or pre-existing condition exclusions.

Example 13: Termination Protection
Captain Rodriguez returns from a 13-month deployment. She’s reemployed. Seven months later, her employer tries to fire her, claiming “poor performance” (though her reviews are good). She’s protected from termination without cause for one year after reemployment (served 181+ days). She challenges the termination and wins because it wasn’t for actual cause.

Example 14: Multiple Short Trainings
Sergeant Chen has multiple short training periods: drill weekends (1 per month), 2-week annual training, and a 5-day school. Each triggers USERRA protections. His employer cannot count these absences against him or terminate him for fulfilling training requirements. He provides advance notice for each absence.

Example 15: State Emergency Activation
During a hurricane, the Governor activates the National Guard. Specialist Torres (a public school teacher) is activated for 12 days. He receives paid leave from the school district for these 12 days (under the 22-day state active duty provision). His teaching position is held, and he returns to work after the emergency ends.

Frequently Asked Questions

Do I get paid during military leave?
It depends. Federal USERRA doesn’t require pay. However, New York public employees receive up to 30 days of paid leave per year for ordered military duty, plus 22 additional days for state active duty. Most private employers don’t pay for military leave (though some voluntarily do). You receive military pay from the military during service.

Can my employer fire me for being in the military?
No. Discrimination based on military service or membership is illegal under federal and state law. Employers cannot refuse to hire, terminate, or discriminate against you because of military obligations.

What if I served more than 5 years?
The 5-year cumulative service limit is a USERRA requirement, but many exceptions apply (involuntary extensions, service required by training, etc.). Most service members never hit the 5-year limit with a single employer. Consult a USERRA attorney if you exceed 5 years and face reemployment denial.

Can I take military leave intermittently?
Yes. Drill weekends, annual training, and other periodic service all trigger USERRA protections. You don’t have to take one long leave—multiple short periods are protected.

What if my employer went out of business while I was deployed?
If your employer no longer exists, reemployment rights don’t apply (there’s no employer to return to). However, if the business was acquired or merged, the successor employer may have reemployment obligations.

Do I need to provide my orders to my employer?
It’s not legally required, but providing orders helps verify your service and avoid disputes. Employers can request documentation to confirm your military service dates and type.

Can I use FMLA concurrently with military leave?
FMLA covers qualifying exigencies (if you’re a family member of a deployed service member) and covers caring for injured service members (up to 26 weeks for military caregiver leave). FMLA and USERRA are separate but can overlap in certain situations.

What if I’m injured during service?
USERRA provides extended deadlines for reemployment if you’re hospitalized or recovering from service-related injuries (up to 2 years in some cases). Additionally, your employer must make reasonable efforts to accommodate service-related disabilities upon reemployment.

Can my employer require me to use vacation time during military leave?
No. Your employer cannot require you to use vacation or other accrued paid time off for military leave. However, some employers voluntarily pay during military leave using accrued leave, and you can choose to use it if you want.

Who enforces USERRA?
The U.S. Department of Labor Veterans’ Employment and Training Service (VETS) investigates USERRA complaints. You can also file a private lawsuit with an attorney. New York Division of Human Rights handles state-level military discrimination claims.

Related Topics

Legal Disclaimer

This guide provides general information about military leave rights in New York and is not legal advice. USERRA and New York Military Law are complex, and your specific situation may involve unique factors. If your employer denies reemployment, discriminates based on military status, or retaliates against you, consult a qualified attorney specializing in USERRA and military employment rights. Laws and regulations change; verify current requirements with the U.S. Department of Labor VETS, New York Division of Military and Naval Affairs, or legal counsel.

Need Legal Help?
If your employer violated your USERRA or New York military leave rights, contact an attorney specializing in military employment law today. Many offer free consultations to service members.

USERRA Resources: