Military Leave: Delaware

This Military Leave policy applies to employees in Delaware and is designed to comply with Delaware's military leave protections for National Guard members and reservists under 29 Del. C. Section 5105, along with the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). It explains who qualifies for leave, what notice and return-to-work communication you can reasonably ask for, how unpaid leave and optional use of accrued paid time off work, and your organization's commitment to non-discrimination and non-retaliation for employees who request or take military leave.

The History Behind Military Leave Policies in Delaware

Military Leave & USERRA are meant to prevent employers from penalizing military service, especially by denying reemployment after duty. Congress first tackled that nationally with the Veterans' Reemployment Rights Act after World War II, then modernized and strengthened the rules with the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA set the baseline most employers now treat as non-negotiable, job-protected leave for military service, plus strong anti-discrimination rules tied to military status and service obligations.

Courts then helped settle the parts of the law that were unclear. The Supreme Court's decision in Staub v. Proctor Hospital (2011) is a big one for HR teams because it confirmed that employers can face liability when a biased supervisor's anti-military animus influences an employment decision, even if the final decision-maker claims they had clean hands. That case did not rewrite USERRA, but it changed how many employers think about manager training, documentation, and who gets to "weigh in" on discipline or termination when an employee has Guard or Reserve duties.

Delaware layered on its own rules for National Guard service, including job protection for employees called to active state duty under Title 29 of the Delaware Code (including Section 5105). Delaware employers ended up with a practical compliance reality: you follow USERRA as the floor for most military leave situations, and you also account for state-ordered Guard activations that do not always look like federal deployments. A written policy became the cleanest way to keep those obligations straight across HR, payroll, and front-line managers.

Which Law is the Military Leave Policy Meant to Comply With?

If you create and distribute a Military Leave Policy for your Delaware-based employees, it is in an effort to comply with Delaware's 29 Del. C. § 5105 (Leaves of absence for military service).

How to Write a Delaware-Specific Military Leave Policy

• Start with "why" and introduce the concept.
• Define who is covered and what types of military service qualify for leave in Delaware.
• State that military leave is unpaid and that employees may use accrued paid time off if they choose.
• Explain the expectation that employees give notice of military duty and communicate their intent to return to work.
• Include a clear point of contact for requesting military leave.
• Commit to non-discrimination and non-retaliation for requesting or taking military leave.

When to Include this Policy in Your Employee Handbook

The law does not require you to publish a policy or issue a specific notice. That said, you still have to comply with the requirements that apply to you as an employer. 

This is a "depends on your workplace" policy. Include it if you offer the benefit, operate in a setting where this comes up, have a state-specific rule that differs from your national approach, or you've had issues in this area before. If you already have a clear all-employee policy that covers the same ground (and it meets Delaware's requirements), you may not need a separate policy here. 

Other Considerations

The law applies to Delaware employers who have at least 1 employee in the US.

Exceptions

None