If your human resources team is currently looking to conduct a reduction event, you might be curious about if your organization can layoff any employees who are currently on military leave under USERRA.
In short, yes, your organization can layoff employees who are on military leave.
But in reality, it is more complicated than that.
Your organization can layoff someone on military leave if that person would have been laid off had they been a civilian at the time. For example, if you have a plant that closes down and results in all employees being laid off, any employees who are on military leave would have been laid off had they not been on said military leave.
So in this case, yes-- your organization can layoff these individuals.
However, you can’t layoff someone on military leave just because that person is on military leave. This would be unethical and against the law.
In all situations, it is the business's responsibility to build a case as for why the layoff of said person on military leave had to occur. Businesses should be prepared to show evidence of their decision to layoff someone on military leave in case it is challenged.