The reserve forces of the United States have two components, the Reserve and the National Guard. There are some differences in the treatment of leave in the Reserve and Guard, so be sure you are reading the correct section.
- An employee who is in the National Guard and is called to active duty by the Governor is entitled to paid Emergency Leave for the time in which that employee is on active duty. This time is not limited and does not count against military leave or annual leave .
- All military leave, other than active duty in the National Guard as called by the Governor, is subject to a maximum of 15 days leave per federal fiscal year.
The following information pertains to all employees in the reserve forces, regardless of whether they are National Guard or Reserve.
Notification or Request for Military Leave
The Law requires all employees to provide their employers with advance notice of military service. Notice may be either written or oral. It may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be servicing. However, no notice is required if:
- military necessity prevents the giving of notice; or
- the giving of notice is otherwise impossible or unreasonable
A state employee is entitled to 15 days of paid military leave regardless of whether or not the employee is currently in a leave without pay status. Source: State Auditor's Office Leave Interpretation Letter 98-03
After exhausting the 15 days of military leave an employee may use accrued vacation leave to the extent available or be placed in a leave without pay status (or a combination of the two) for the remainder of the active duty period. Source: State Auditor's Office Leave Interpretation Letter 79-01
Use of compensatory time in conjunction with using military leave
By limiting agencies' discretion to pay employees for overtime to situations in which granting time off is impractical, the Legislature indicated its preference that agencies compensate FLSA non-exempt employees with compensatory time. The Legislature further gave agencies the choice of allowing or requiring the employee to use the compensatory time. Reading this language in light of the Supreme Court decision and the Fifth Circuit Court of Appeals decision, the State Auditor has stated that agencies may require non-exempt employees who have requested leave to exhaust FLSA compensatory time balances before using annual leave. Source: State Auditor's Office Technical Update Letter 01-01
If an employee of a state agency (defined by Texas Government Code section 658.001) submits a written request to use accrued state compensatory time not later than the 90th day before the date on which the accrued compensatory time will lapse, the employer shall approve in writing the employee's request or provide the employee with an alternate date on which the employee may use the compensatory time. The employing agency is encouraged to reasonably accommodate the employee's use of the accrued compensatory time. Source: Texas Government Code 659.022
A public employee who leaves a state position or a position with a local government entity to enter active military service is entitled to be re-employed:
- by the state or local government entity,
- in the same department, office, commission, or board of this state, a state institution, or local government entity in which the employee was employed at the time of induction or enlistment in, or order to, active military service, and in the same position held or a position of similar seniority, status, pay.
Unless the employee has submitted his or her resignation, he or she is still considered to be a state employee while on leave without pay as a member of the Reserve Branch of the military.
Last Updated: November 19, 2013