What military leave are Texas employees entitled to?
USERRA does the heavy lifting: reemployment, benefits, and protection from discrimination for service.
Last updated: August 02, 2026
Direct Answer
Employees who serve in the uniformed services are protected by federal USERRA and by Texas law. Employers must provide unpaid leave for military service and training, reemploy returning service members in the position they would have attained, and may not discriminate or retaliate based on military service. USERRA applies to virtually all employers regardless of size. Texas provides additional protections for state military forces members.
Controlling authority: Tex. Elec. Code sec. 276.004 (voting), Tex. Civ. Prac. & Rem. Code ch. 122 (jury service) and USERRA. These are the only leaves Texas law itself requires.
USERRA is the framework
USERRA has no small-employer exception. A three-person shop owes the same reemployment rights as a corporation. Leave for drill weekends, annual training, and deployments must be granted, and the employee generally must be restored to the position they would have reached if continuously employed, a concept known as the escalator principle.
The employee's notice can be informal and pay is generally not required for the leave itself, though exempt salary rules apply for partial weeks worked. Health coverage continuation and pension protections attach to longer leaves. The paperwork burden is light; the reemployment obligation is heavy.
| Leave | The rule | The detail employers miss |
|---|---|---|
| Voting | An employer may not refuse to permit an employee to be absent to vote on election day or during early voting, or penalise them for voting | The exception: none of this applies if the polls are open for two consecutive hours outside the employee’s working hours. “Penalty” includes a reduction in wages. Class C misdemeanour. |
| Jury service | An employer may not discharge, threaten to discharge, intimidate or coerce a permanent employee for jury service | The employee is entitled to return to the same job on giving actual notice of intent to return as soon as practical after release. Class B misdemeanour, and contempt is separately available. |
| Military service | USERRA governs reemployment, benefits and protection | Texas public employers have additional state provisions; check yours. |
| Everything else | No Texas requirement | Sick leave, vacation, bereavement, holidays: all policy, not statute. |
Service counts toward FMLA eligibility on return
The escalator principle surprises employers. Returning service members are not simply put back in their old job. If a raise, promotion, or seniority step would have arrived during service, the returning employee gets it. Restoring someone to a stale version of their job is itself a violation.
Texas adds a layer for members of the Texas National Guard and state military forces called to state duty, who receive protections under state law in addition to USERRA coverage for federal service. Public employers have further obligations, including paid military leave days for their employees under state law.
| Test | FMLA | ADA | PWFA |
|---|---|---|---|
| Covered employer | Private: 50+ in 20+ workweeks. Public agencies and schools at any size. | 15 or more employees | 15 or more employees, including state and local government |
| Employee threshold | 12 months, 1,250 hours, 50 employees within 75 miles | No service requirement | No service requirement |
| What triggers the duty | A qualifying reason and proper notice | A disability and a request for accommodation | A known limitation related to, affected by, or arising out of pregnancy or childbirth |
| Duration | 12 workweeks (26 for military caregiver) | No fixed duration — leave can be an accommodation | No fixed duration |
| Employer defence | None; eligibility is arithmetic | Undue hardship — significant difficulty or expense | Undue hardship — significant difficulty or expense |
| Can the employer force leave? | May require paid leave to run concurrently | Leave is a last resort where another accommodation works | No — may not require leave if another accommodation would let the employee keep working |
| Runs out? | Yes, at 12 weeks | The ADA duty survives FMLA exhaustion | Continues while the limitation does |
Where military leave handling fails
Military leave violations carry back pay, liquidated damages, and attorney fees. Watch for these patterns.
- Hiring decisions influenced by anticipated Guard or Reserve obligations
- Attendance points or scheduling penalties tied to drill weekends
- Returning service members restored to lesser positions or stale pay
- Health coverage dropped without offering required continuation
- No written military leave policy, leading to inconsistent manager responses
Confirm reemployment rights before the return date
Review your attendance and scheduling practices for anything that penalizes drill or training absences, then confirm your reinstatement process accounts for the position the employee would have attained rather than the one they left.
For public employers, verify the paid military leave day entitlement is tracked correctly, because underpaying it is a recurring audit finding.
Runs the 12-month, 1,250-hour and 50/75-mile tests against your actual numbers.
When service is lengthy or repeated
Get help before making any adverse decision that touches an employee with military obligations, including layoffs, because reemployment and discrimination protections change the analysis.
If a deployment return is approaching and the old role has changed, plan the reinstatement in advance rather than improvising on their first day back.
Get a Straight Answer for Your Situation
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