PunchMilitary Leave and USERRA: What Small Employers Owe Guard and Reserve Crew (2026)
Military Leave and USERRA: What Small Employers Owe Guard and Reserve Crew (2026)
The short answer: The Uniformed Services Employment and Reemployment Rights Act applies to every public and private employer, with no minimum headcount. A two-person shop has the same obligations as a two-thousand-person one. Military leave is generally unpaid, but three federal appeals courts have now held that if you pay for comparable short absences like jury duty or bereavement, you may owe pay for short military leave too. You cannot force a crew member to burn PTO for it, and you have to hold the job open. Punch keeps military absences as their own time-off record, separate from punched hours, so the leave never distorts the week's overtime and the service dates are still there a year later.
Most small-employer leave laws come with a size threshold. FMLA starts at 50 employees. Many state sick leave mandates start at five or ten. USERRA has none. If you have one crew member in the National Guard, the statute is already pointed at you, and the FY2026 Selected Reserve authorization covered roughly 764,900 National Guard and Reserve positions, so a lot of small field crews have one.
USERRA Covers Every Employer, No Exceptions for Size
USERRA applies to all public and private employers irrespective of size. There is no small-business carve-out, no headcount floor, and no waiting period for the employee to earn the protection. It attaches from the first day of employment.
It covers three things at once: a prohibition on discrimination and retaliation because of military membership, service, or obligations; continuation of certain benefits during the leave; and a broad right to get the job back afterward. That last one is the expensive one to get wrong, because the remedy is the job plus back pay. Treat a drill weekend like a scheduling annoyance and you have created a claim, not a staffing problem.
The Five-Year Cap, and Why Drill Weekends Do Not Count Toward It
Reemployment rights apply as long as the cumulative length of service causing absences from that job does not exceed five years. Owners hear "five years" and start doing arithmetic on a Guardsman who has been with them for a decade. Stop before you do.
Eight categories of service are exempt from the five-year count under 38 U.S.C. § 4312(c). The ones that matter most to a small crew:
- Periodic and special Guard and Reserve training. The monthly weekend drills and the two-week annual training required by statute do not count toward the five years at all.
- Service required to finish an initial period of obligated service. An enlistment longer than five years does not exhaust the clock.
- Service the person cannot get released from through no fault of their own.
- Involuntary active duty, extensions, and recalls, including during a national emergency.
In practice, a career Guard member doing drill and annual training may never approach the cap. If a set of orders is the question, the answer is in the orders, which cite the statutory authority for the duty. Read them before assuming anything has run out.
Notice, and What You Can Actually Require
The employee must give advance notice of military service. Two things about that rule surprise employers.
It does not have to be in writing. USERRA does not require advance written notice. Verbal notice counts. A foreman telling you on a Tuesday that he has drill this weekend has met the requirement.
There is no minimum amount of notice. The statute does not specify a number of days. The Department of Defense recommends as much as possible, but you cannot impose a thirty-day rule and deny leave to someone who gave you ten.
Notice is excused entirely when military necessity prevents it, or when giving notice is otherwise impossible or unreasonable.
You also cannot make the employee use accrued vacation or PTO to cover the absence. The employee may elect to use paid leave during military service, and that election belongs to them alone. Writing "military leave runs concurrently with PTO" into a handbook does not make it enforceable.
Do You Have to Pay for It?
The traditional answer is no: USERRA requires unpaid leave with job protection, not wages. That answer has been narrowing.
Under USERRA, an employee on military leave must receive the same rights and benefits as employees on comparable non-military leave. Three federal appeals courts have applied that to paid leave. The Seventh Circuit in White v. United Airlines, the Third Circuit in Travers v. FedEx, and the Ninth Circuit in Clarkson v. Alaska Airlines all held that an employer who pays employees for comparable short absences may owe pay for short-term military leave as well. Where the treatment of comparable leaves varies, the service member gets the most favorable treatment given to any of them.
The practical test is simple. Look at your own policy. Do you pay for a jury duty day? A bereavement day? A sick day? If a drill weekend is comparable in length and purpose, pay for the military day too, or expect to defend the difference.
Salaried exempt employees are a separate rule and a stricter one. Under 29 CFR § 541.602, you may not deduct from an exempt employee's salary for temporary military leave in any workweek where they perform some work. You may offset the military pay they receive for that week against the salary owed, but docking the salary outright puts the exemption itself at risk.
Getting Them Back: Deadlines and the Escalator
The return is a clock, and the length of the service sets which clock runs.
- 1 to 30 days of service. Report at the start of the first regularly scheduled work period on the day after service ends, allowing for safe travel home plus eight hours of rest.
- 31 to 180 days. Apply for reemployment no later than 14 days after completing service.
- 181 days or more. Apply no later than 90 days after completing service.
Those reporting and application deadlines extend for up to two years for someone hospitalized or convalescing from an injury or illness incurred or aggravated during service. Once a timely application lands, you generally must reemploy the person promptly, which means within two weeks absent unusual circumstances.
Reemployment is not "their old job back." It is the escalator principle: the position they would have attained had they never left, with the seniority, status, and pay that position carries. If the crew got a raise, a new rate, or a promotion track while they were gone, the returning employee steps back onto the escalator where they would have been standing.
Two more obligations attach after the return. They may not be discharged without cause for one year if the service was 181 days or more, or for 180 days if the service was 31 to 180 days. Service of 30 days or fewer carries no post-return discharge protection.
Health Coverage and State Law
If the military duty runs more than 30 days, the employee may elect to continue employer-sponsored health coverage for up to 24 months, and you may charge up to 102 percent of the full premium. If the duty is 30 days or fewer, you cannot charge more than the normal employee share.
USERRA is the floor, not the ceiling. Most states have their own laws covering members of the state National Guard called to state active duty by a governor, and those terms vary. Some extend USERRA-style rights to state duty, some add their own. Missouri enacted a law effective August 28, 2026, giving public-employee Guard members up to 160 hours of paid military leave per year. Texas state employees get up to 15 days of paid military leave per fiscal year. Confirm your state's rule before you write a policy, because state active duty often falls outside the federal statute.
Frequently Asked Questions
Does USERRA apply to a business with five employees?
Yes. USERRA applies to all public and private employers irrespective of size. There is no headcount threshold and no length-of-service requirement for the employee.
Do drill weekends count against the five-year limit?
No. Periodic and special Guard and Reserve training, including monthly weekend drills and the statutory two-week annual training, is exempt from the five-year cumulative count under 38 U.S.C. § 4312(c).
Can I require an employee to use PTO for military leave?
No. The employee may choose to use accrued vacation or PTO during military service, but that election is theirs. You cannot impose it.
Do I have to pay for military leave?
Not as a general rule. But if you pay for comparable short non-military absences such as jury duty, bereavement, or sick leave, three federal appeals courts have held that USERRA can require paid short-term military leave on the same terms. Exempt salaried employees also may not have their salary docked for temporary military leave in a week they perform any work.
How long does an employee have to come back?
Service of 1 to 30 days: report the next regularly scheduled work period after safe travel and eight hours of rest. Service of 31 to 180 days: apply within 14 days. Service of 181 days or more: apply within 90 days. Deadlines extend up to two years for service-related hospitalization or convalescence.
Can I fire someone after they come back?
Not without cause, for a protected window. One year if the service was 181 days or more, 180 days if it was 31 to 180 days. Cause may rest on conduct or legitimate nondiscriminatory reasons, and the burden is on you.
Keep the Service Days Out of the Hours Column
Military leave is rarely a payroll emergency. It becomes one when a timesheet cannot tell the difference between an hour someone worked and an hour someone was away, because the crew member was in uniform, not on the job site.
Punch draws that line by design. Worked hours come from punching in and punching out, recorded to the minute against a job site. Time off, including a drill weekend or a deployment, is requested by the employee and approved by an owner or manager as its own record, so it never quietly lands in the hours column and inflates the overtime base. Overtime is calculated from real punched hours using the rules for your jurisdiction, with over 50 country presets built in. Owners and managers approve each pay period before payroll runs, weekly or bi-weekly, with bulk approve for a clean week, then export straight to QuickBooks Online or to CSV and Excel. Because the records stay put, the service dates and the pay history behind an escalator question are still there when someone returns from a year away.
Punch-in can be geofenced to the job site when you want that verification, and it is a geofence rather than a camera in your crew's face, because trust beats surveillance. Punches work offline and sync when signal returns, which matters when the rest of the crew is covering a remote site short-handed.
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