Military Leave Rights in Colorado: USERRA & State Protections

The Uniformed Services Employment and Reemployment Rights Act (USERRA), codified at 38 U.S.C. § 4301 et seq., is the primary federal law protecting military service members. USERRA applies to all employers with one or more employee, regardless of size, covering all branches of military service including the Army, Navy, Air Force, Marines, Coast Guard, and their reserve components, as well as the National Guard and commissioned corps of the Public Health Service.

USERRA prohibits discrimination based on military service and guarantees that employees who take military leave for service lasting up to 5 years will be reinstated to the same job or an equivalent position with equivalent pay, benefits, and terms of employment. The law requires employers to maintain health insurance during military service and prohibits discharge without cause for up to one year following reemployment. Employees are entitled to seniority credit for their period of service.

The Department of Labor's Veterans Employment and Training Service (VETS) enforces USERRA. An employee can file a USERRA complaint with the Department of Labor within 3 years of the violation. If the agency cannot resolve the claim, the employee may file a civil action in federal or state court. Remedies include back pay, benefits, compensatory damages, liquidated damages equal to the total amount awarded, and attorney fees and costs.

Colorado law provides additional protections beyond federal USERRA requirements. Colorado Revised Statutes § 28-3-609 provides paid military leave specifically for employees who are members of the National Guard or any reserve component of the United States Armed Forces. These employees are entitled to paid leave for all periods of active duty, active duty training, and inactive duty training ordered by the federal government. This leave is separate from and in addition to any other leave (vacation, sick leave, personal leave) an employee may have. Unlike federal USERRA which focuses on reemployment rights after extended service, Colorado's statute emphasizes paid leave protection during service.

Colorado Revised Statutes § 28-3-610 provides additional paid leave (up to 10 days per occurrence) for employees who are military service members attending military funerals or who need to attend to military family grievances. This protects employees who need to take time off for service-related family matters. Colorado law applies to all employers, including private, public, and governmental employers.

The key difference from federal law is that Colorado explicitly mandates paid leave for military service and military-related absences, whereas USERRA primarily guarantees job reinstatement and non-discrimination without specifying that the leave itself must be paid. An employer cannot require an employee to use accrued vacation or sick leave for military service—the military leave must be provided separately and at full pay. Colorado employers cannot require a wait period, reduce benefits, or impose any penalty on employees taking military leave. Remedies under Colorado law include unpaid wages, lost benefits, and damages. An employee can file a complaint with the Colorado Department of Labor and Employment or pursue a civil action.

USERRA does not apply if the employee's service was disqualifying, such as dishonorable discharge, or if the service was not ordered or authorized by proper military authority. Service lasting longer than 5 years generally does not trigger USERRA reemployment rights, except for service in response to national emergency or presidential call-up, or for certain training. An employer is not required to reinstate an employee if the employee became unfit for duty during service (as determined by proper medical authority), though the employer must still provide accommodations if the employee can perform the essential functions with reasonable accommodation under the ADA.

An employer may deny reemployment if the employer's circumstances have changed such that reemployment is impossible or unreasonable, or if the employer's business is so fundamentally altered that reemployment is unreasonable. However, this is a narrow exception and the burden is on the employer to prove it. An employer is not required to promote a returning service member, only to restore them to their prior position or equivalent. Probationary periods may apply after reemployment, but the employee's service time counts toward seniority for benefits purposes.

Colorado law exceptions are narrower. An employer covered under Colorado § 28-3-609 cannot claim financial hardship as an exception. However, Colorado law applies only to military service ordered by the federal government; service that is purely voluntary and not ordered does not trigger the paid leave requirement, though it may still be protected under USERRA. Small employers (fewer than 10 employees) may not be exempt from Colorado law, unlike some other state leave laws. An employee's eligibility for Colorado paid military leave is not conditioned on the expected length of service.

Step 1 — Document Everything: Keep detailed records of (a) military service orders or duty assignment paperwork showing dates, authorization, and type of service (active duty, training, etc.); (b) all written communication with your employer about your service and leave request, including emails, letters, or forms submitted; (c) your job title, job description, and compensation before military leave; (d) paystubs showing whether military leave was paid; (e) any communication from your employer indicating retaliation, demotion, or denial of benefits after return. Save copies of performance reviews, promotion records, and any disciplinary action taken before vs. after military service.

Step 2 — Internal Complaint Process: Before filing an external complaint, submit a written complaint to your employer's human resources department or management, stating clearly that you are asserting rights under USERRA and/or Colorado §§ 28-3-609 and 28-3-610. Keep a copy. Request a written response within 10 business days. In the response, the employer should either (a) confirm compliance and remedy any violations, or (b) explain why they believe no violation occurred. This creates documentation and gives the employer a chance to correct the problem voluntarily. If you are still employed and internal resolution is attempted, do not resign; documented continued employment strengthens your case.

Step 3 — File with the Department of Labor: You have 3 years from the date of the alleged violation to file. File a USERRA complaint with the U.S. Department of Labor, Veterans Employment and Training Service (VETS), at https://www.dol.gov/agencies/vets/. You can also file directly at your regional VETS office (Colorado VETS office contact: phone 303-318-8826). Alternatively, you may file a complaint with the Colorado Department of Labor and Employment (https://cdle.colorado.gov/), which has concurrent jurisdiction over Colorado-specific military leave claims. Include: (1) your name, contact information, and employer's name and address; (2) dates of military service and leave requested/taken; (3) description of the alleged violation (denied leave, denied reinstatement, demotion, discharge, reduction in pay/benefits); (4) the specific law violated (USERRA, § 28-3-609, § 28-3-610); (5) copies of supporting documents (military orders, pay stubs, communications).

Step 4 — Investigation Process: The Department of Labor will attempt to resolve your complaint through investigation and negotiation with your employer. VETS will contact your employer and request their response and records. This typically takes 30–60 days. You will be asked for additional details or clarification. VETS may request your employment records, performance reviews, compensation records, and military documentation. If VETS believes a violation occurred, they will issue a determination and request the employer remedy the violation. If your employer refuses, VETS will refer the case back to you with notice that you may pursue a private civil action. The VETS process is non-adversarial; no hearing is held at this stage.

Step 5 — When to Consult an Attorney: Consult an employment attorney (specializing in military service or employment law) immediately if: (a) your employer denies your military leave or retaliates against you for asserting USERRA rights; (b) you have been discharged, demoted, or denied promotion in connection with military service; (c) your employer has failed to restore you to your prior position or equivalent position after service; (d) your employer has denied you military-related benefits or pay. An attorney can help you preserve evidence, file complaints, and pursue a civil action if the administrative process fails. Many employment attorneys handle USERRA cases on contingency (no upfront cost). A civil action can be filed in Colorado state court or federal court. Remedies can include all back pay and benefits, liquidated damages (dollar-for-dollar match), compensatory damages for emotional distress, punitive damages if the violation was willful, and attorney fees.