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Guard Leave, Reinstatement, and a Ban on Squeezing You Out — but Not a Day of It Paid

An employer must grant leave of absence for the period required to perform active duty or training in the National Guard, and must take the employee back into the former position with the seniority, status, pay and other rights they would have had. No employer is required to make any of that leave paid. A separate section makes it unlawful to deprive a Guard member of employment or to obstruct their trade or profession.

Verified August 23, 2026

What this benefit is

An employer must grant leave of absence for the period required to perform active duty or training in the National Guard, and must take the employee back into the former position with the seniority, status, pay and other rights they would have had. No employer is required to make any of that leave paid. A separate section makes it unlawful to deprive a Guard member of employment or to obstruct their trade or profession.

What it's worth: Protected leave and reinstatement at your former seniority, status and pay — unpaid

  • No amount is claimed, and the value here is what you keep rather than what you receive: the job, the seniority date and the pay step, none of which reset because you were away.
  • The section says expressly that no employer shall be required to grant the leave with pay, so describing this as paid military leave overstates it.

Who is entitled to it

  • The leave and reinstatement rights run to the serving member.
  • You are in this state.

Not sure whether that describes you?

Answer a few questions about this benefit specifically — we only ask what this one actually depends on, and we stop as soon as we know.

How to claim it

Deadline: On notice of duty, and again on release from it
  1. 1Give the orders to the employer in writing and keep a copy. The right is to a leave of absence "for the period required to perform active duty or training", which is defined by the orders rather than by a fixed number of days.
  2. 2The reach is wider than most people assume. Since the 2018 amendment the section covers duty in the National Guard of this or any other state, so a member who has moved and drills elsewhere is inside it.
  3. 3On release, ask for the former position back with the seniority, status, pay and every other right or benefit you would have had if you had not been absent. That wording is the section’s own, and it means the pay step and the seniority date move as though you never left.
  4. 4Do not expect the leave to be paid. The proviso is explicit, and it is the single most misread part of the section.
  5. 5A second section is worth knowing separately: it is unlawful to wilfully deprive a Guard member of employment, to prevent them being employed, to obstruct them in a trade, business or profession, or by threats of violence to prevent anyone enlisting.
  6. 6That second section also reaches trade bodies. An association or corporation formed to promote the trade or business of its members may not discriminate against a Guard member by constitution, rule, bylaw, resolution, vote or regulation — which covers a membership or licensing body as much as an employer.
  7. 7A student called to state or federal active duty has a parallel protection: no teacher, professor, principal or president may discriminate for the absence, the institution must credit all academic work accomplished to the date of the absence, and reasonable time must be given to make up work missed.
Form
None — give the employer your orders, and claim reinstatement on release
File with
Your employer
No renewal
Once granted it does not need renewing.
CorrectionThis is regularly listed as "paid military leave for the National Guard" here. The section says the opposite in terms: the employee shall be permitted to return with the same seniority, status and pay, "except that no employer shall be required to grant an employee a leave of absence with pay". The protection is the job and the seniority, not the wages during the absence.
Worth knowingKRS 38.238 and KRS 38.460 were amended together in 2018 to add the words "of this or any other state". Before that a member drilling with another jurisdiction’s Guard while employed here had a much weaker argument, and guidance written before 2018 is describing the narrower statute.
Worth knowingKRS 38.460 is a prohibition rather than a benefit, and it is aimed at people other than the employer as much as at the employer — anyone who obstructs a member "in the conduct of trade, business, or profession" is inside it. That makes it useful to a self-employed Guard member, who gets nothing at all from a leave-and-reinstatement provision.
Known gapThe enforcement route is not stated in either section. Chapter 38 carries a penalties section at KRS 38.990 which was not read this session, so whether the remedy is criminal, civil or both, and where a complaint goes, is unverified here.

Sources

This finder provides an informational match, not a government eligibility determination. The responsible agency decides your application.