KBS Reference Desk: Military Leave

Q:       We have an employee who has informed us that he wishes to join the military reserves and will need to leave for training for 20 weeks during this school year. Since he was not in the military when he was hired, do we have to continue his employment when he is gone?

A:        Yes. The District is not permitted to terminate the individual’s employment because of his required military reservist training.

There are both federal and state laws at play in this situation. The United States Code notes an employer must not deny employment, reemployment, or retention in employment based on service. See 38 U.S.C. §4311(a). The law also requires the employer to reinstate service members upon their return to work from an unpaid leave status and afford them the right to continue in the employer’s benefits program. Note that only the first 15 days of military leave is paid, with the remainder being unpaid until the employee returns to work. The Texas Government Code provides that employees are to be granted paid leave not to exceed 15 working days, without loss of time, efficiency rating, vacation time, personal time, sick leave, or salary on all days absent due to military training. See Tex. Gov’t. Code § 437.202. Should the employee so elect, the Texas Education Code also allows an employee to use his available paid leave during the period of military service. See Tex. Educ. Code § 22.003(d).

In short, the district is obligated to maintain the employee’s position with the district during his time away for military training. Look to your Employee Handbook and policies DEC and DECB (LEGAL) and (LOCAL) for the number of days of paid leave authorized by your district. The employee will be on unpaid status thereafter for his remaining time off dedicated to military service. The employee may elect to have banked personal leave run concurrent with the unpaid military leave.

Check out the link below to find additional information concerning employee rights during military service, which is available on TASB’s website at: 

https://www.tasb.org/services/legal-services/tasb-school-law-esource/personnel/documents/userra_nov14.pdf.

If you have any further questions or need assistance updating your district’s board policy regarding military leave, you should seek the assistance of your school district’s attorney.

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