Military leave - Illinois

Effective 1/1/19

Effective 1/1/19, the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) replaces the state Military Leave of Absence Act and the Public Employee Armed Services Rights Act.

Similar to the federal USERRA, the ISERRA entitles employees to prompt reemployment after military service, and prohibits discrimination against and interference with military service. The state law adopts many of the federal USERRA’s provisions. Some of the differences are spelled out below.

For public employees, differential compensation must be paid to all forms of active service except active service without pay.

An employer may require notice of the need for military leave by appropriate military authority on official letterhead. If, however, military necessity precludes the employee providing notice, the employee would not need to comply.

Employees who are absent on military leave must, at least, during military leave, be credited with the average of the efficiency or performance ratings or evaluations received for the three years immediately before the absence for military leave.

Before 1/1/19

Until 1/1/19, Illinois Military Leave of Absence Act and the Public Employee Armed Services Rights Act remain in effect.

Under the Illinois Military Leave Act, any member of the National Guard whose absence from employment is necessitated by reason of being called to State Active Duty or an order of a governor of any other state is entitled to reemployment and other employment benefits if:

1. the member has given advance written or oral notice of the service, if reasonably possible;
2. the member reports to, or submits an application for reemployment to, the employer; and
3. the character of the member’s service on State Active Duty was honorable, under honorable conditions, or otherwise characterized as satisfactory.

No notice is required if precluded by military necessity, or if the giving of the notice is not reasonably possible, under all relevant circumstances.

An employer is not required to reemploy a member if the employment position is for a brief, nonrecurrent period and there is no reasonable expectation that the employment will continue indefinitely or for a significant period.

A member shall, upon completion of service, notify the employer of intent to return as defined in state law. A member who fails to report or apply for reemployment within the appropriate period shall not automatically forfeit his or her rights and benefits, but shall be subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work.

A member entitled to reemployment shall be promptly reemployed in the position he or she left with the same increases in status, seniority, and wages that were earned during the period of State Active Duty by employees in like positions who were on the job at the time, 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.

If the member is no longer physically, mentally, or otherwise qualified or able to perform the duties of the position due to disability, but is qualified and able to perform the duties of any other position, the member shall be restored to that other position that will provide him or her with like seniority, status, and pay, or the nearest approximation consistent with the circumstances.

The member shall not be discharged from the position without cause within one year after reemployment.