From the Hotline: USERRA and Vacation Accrual

Question: Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), how do vacation accruals work?

Answer: Vacation accruals, that is, the actual receipt of vacation time benefit rather than the rate at which an employee accumulates the benefit, is not usually tied to seniority. For example, a person returning from three years of service may have passed a time benchmark where that person is entitled to build vacation at an increased rate (e.g., from one week a year to two weeks per year), but that person would not return to find three years back-vacation waiting.

If an employer allows accrual of vacation for employees who are on a comparable furlough or leave of absence, then a person of similar seniority, status, and pay who is absent for uniformed service is entitled to the same benefit, because Uniformed Services Employment and Reemployment Rights Act (USERRA) treats the individual as being on furlough or leave of absence while performing uniformed service. See 20 CFR Part 1002.150.

USERRA requires an employer to allow an individual to use earned vacation credits while absent for service, providing that usage is at the employee’s request. An employer may not require the use of vacation for a service absence, unless the absence coincides with a period, such as a plant shutdown, when all employees are required to take vacation. See 20 CFR Part 1002.153.