• Employees are to be returned to the position they would have attained without leave.
• Exceptions exist with respect to persons who have a disability incurred in or aggravated by military service.

Employers must give returning employees their former positions (or equivalent positions) and place them at the same seniority, pay, and benefits levels that they would have attained had they not taken the leave (the escalator principle). The basic reemployment protection does not depend on the timing, frequency, duration, or nature of someone’s service as long as the basic eligibility criteria are met. The length of military service can be, however, a consideration.

Employers must also make reasonable efforts (such as training or retraining) to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. If the employee cannot qualify for the escalator position, there are provisions for alternative reemployment positions.

The escalator principle requires that returning employees step back on the seniority escalator at the point they would have occupied if they had remained continuously employed.

The position may not necessarily be the same job the person previously held. For instance, if the employee would have been promoted with reasonable certainty had the person not taken leave, the employee would be entitled to that promotion upon reinstatement.

Employees whose military service lasted 1 to 90 days must be promptly reemployed in the following order of priority:

1. In the job the employees would have held had they remained continuously employed — so long as they are qualified for the job, or can become qualified after reasonable employer efforts to qualify the employees; or
2. If the employees cannot become qualified for the position in (1), in the pre-service position — so long as they are qualified for the job or could become qualified after reasonable employer efforts; or
3. If the employees cannot become qualified for the position in either (1) or (2), in any other position, which is the nearest approximation of (1) for which the employees are qualified, with full seniority.

Employees whose military service lasted 91 days or more must be promptly reemployed in the following order of priority:

1. In the job the employees would have held had they remained continuously employed, or a position of equivalent seniority, status, and pay — so long as the employee is qualified for the job, or can become qualified after reasonable employer efforts to qualify the employee; or
2. If the employees cannot become qualified for the position in (1), in the pre-service position — so long as they are qualified for the job or could become qualified after reasonable employer efforts; or
3. If the employees cannot become qualified for the position in either (1) or (2), in any other position, which is the nearest approximation of (1) for which the employees are qualified, with full seniority.

Returning service members must be “promptly reemployed.” What is prompt will depend on the circumstances of each individual case. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. On the other hand, reinstatement following five years on active duty might require giving notice to an incumbent employee who has occupied the service member’s position and who might possibly have to vacate that position.