monthly military duty and PTO

Our company provides five personal days per year to employees in addition to vacation time. Our policy states that an employee may not take a day off without pay if they have personal time on the books. Once the employee has exhausted all personal time they may take a day off without pay and not use their vacation time (strange policy, I know).

One of our employees is a member of the National Guard who spends two days a month on duty. Can we require that employee to use their personal time while they are away from work on guard duty? Once all personal time has been exhausted they may then take those duty days without using their vacation time.

I know USERRA addresses vacation time while employees are on active duty but I cannot find anything that refers to personal time while someone does their monthly duty. Thank you.


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  • You are correct that USERRA does not specifically address other "time off" benefits. While all of our reservists monthly duties are on week-ends, we also allow them the time off for their 2 weeks of active duty and give them the option of being paid or not. Just a way to say THANK YOU for their service to our country.
  • Even though "personal time" is not addressed, more than likely this would be considered the same as PTO and it would be the employee's option to use or not.

    This is a good question. If anyone finds out a concrete right answer, please post.

  • You might want to check your state laws too.
  • There is some very helpful information on this topic at [url][/url]

    It does state that an ER cannot make someone use vacation time, but it doesn't specifically address personal time. By following one of the links there I did find this: Title 38, United States Code, Section 4316(d). "Any person whose employment with an employer is interrupted by a period of service in the uniformed services shall be permitted, upon request of that person, to use during such period of service any vacation, annual, or similar leave with pay accrued by the person before the commencement of such service. No employer may require any such person to use vacation, annual, or similar leave with pay during such period of service." This was in reference to a question about serving time as a Reservist, but I suspect that it is the same for the National Guard.

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