STATE OF LOUISIANA
DEPARTMENT OF STATE CIVIL SERVICE
BATON ROUGE, LOUISIANA
General Circular No. 001458
To: Heads of State Agencies and Human Resource Directors
Subject: Military Leave
Issue Date: November 13, 2001
RIGHTS OF AN EMPLOYEE CALLED TO ACTIVE DUTY
Federal Law, State Law, and Civil Service Rules impact the rights of employees called to active duty. Federal Law is supreme and our state statutes track the Federal Law. Civil Service Rules complement the rights granted by these Federal and State Laws.
This general circular presents clarification and supplements the information available in our rules and other sources as related to the rights and obligations of employers and employees when an employee serves on voluntary or involuntary active duty.
While this general circular will not contain a discussion of the definition of "military purposes" as it is used in the Civil Service Rules, that definition is contained in Rule 1.20.01.
Please note: Federal and State law apply to all employees. The Civil Service Rules apply only to classified employees. We will make note throughout the General Circular as to the type of employee affected by various provisions. When the phrase "All Other Employees" is used, it will refer to those employees who are on unclassified, restricted or provisional appointments.
EMPLOYEE NOTICE TO THE EMPLOYER – all employees
The employee is obligated to give as much notice as practical when the employee is called to active duty. Failure to give such notice, however, cannot be deemed a forfeiture of the rights discussed herein.
MILITARY LEAVE PERIODS
Probational and Permanent Employees – Military Leave
Military leave WITH PAY is granted by Civil Service Rules to classified employees serving on probational or permanent status who are members of a Reserve component of the armed forces of the United States.
Probational and permanent employees must be granted 15 calendar days of military leave with full pay for EACH tour of active duty. If an employee is called for several different tours during a year, the employee will receive 15 calendar days of military leave with pay for EACH tour.
If an employee receives orders for one tour of duty, which exceeds a calendar year, the employee must be granted 15 calendar days in each calendar year during which absence occurs for that one tour of duty.
Once military leave with pay is exhausted, and if requested by the employee, the employee MUST be granted the use of annual leave and compensatory leave. Once this is exhausted, a probational or permanent employee shall be placed on leave without pay for a period not to exceed six years. While the employee is on paid leave, the employee shall continue to accrue sick leave and annual leave; employees do NOT continue to accrue leave after being placed on leave without pay. However, their period of leave (with or without pay) does count as state service for purposes of calculating leave accrual rate and adjusted state service date for layoff and layoff avoidance purposes.
Job Appointees – Military Leave
Military leave for job appointees is the same as for probational and permanent employees, with the following exception:
The required six-year period of leave without pay is limited by the term of the job appointment, which in many cases is for three years only. The employee may be separated at the end of the job appointment period. HOWEVER, under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), such employees may be absent from work for military duty and retain reemployment rights for five years. During the protected period, employees must be reemployed in the job that they held or would have attained had they not been absent for military service (including merit increases), UNLESS:
a. such reemployment would impose an undue hardship on the employer, OR
b. the employer’s circumstances have so changed as to make the reemployment unreasonable or inequitable.
All Other Employees (unclassified, restricted, provisional) – Military Leave
The employee may be absent from work and retain reemployment rights for five years, EXCEPT:
a. if the job held by the employee when he left to serve was for a brief, non-recurrent period and there was no reasonable expectation that such employment would continue indefinitely or for a significant period, OR
b. such reemployment would impose an undue hardship on the employer, OR
c. the employer’s circumstances have so changed as to make the reemployment unreasonable or inequitable.
Unclassified employees covered by the Governor’s Executive Order, who occupy positions which earn leave, must be granted 15 calendar days of paid leave in each calendar year, and may be granted leave without pay for periods which exceed the fifteen paid calendar days. If the employee requests the use of annual and/or compensatory leave, the employee must be granted the use of such leave before being separated or placed on leave without pay until the date their term of employment would normally have expired (six months for restricted or provisional appointments; no specified length for many unclassified appointments). See "RETURN FROM MILITARY DUTY" (below) for information on returning these employees to work after their discharge.
NATIONAL GUARD DUTY
When employees are called to active duty in the National Guard by the President, such duty is to be considered "Military Duty", and the "Military Leave" provisions apply. If an employee is called to active duty in the National Guard for a local or state emergency, the following provisions apply:
Permanent, Probational & Job Appointees – National Guard
Rule 11.23(i) provides for ongoing "special" leave with pay for permanent, probational or job appointees called to active duty in the National Guard, but this rule applies only where the Governor of the State has called the National Guard to duty for local or state emergencies.
All Other Employees – National Guard
The Civil Service rules do not provide for "special" paid leave for other classified employees called to active duty in the National Guard. For an unclassified employee covered by the Governor’s Executive Order, and who is in a leave-earning position, the employee is entitled to 15 calendar days of leave with pay in a calendar year, for military duty, including National Guard duty.
PARTICIPATION IN RETIREMENT SYSTEM and BENEFITS PROGRAMS
During the period of military absence, whether the employee is on paid leave or on leave without pay, the employee may continue contributions to the retirement system, to health insurance, and to other similar benefits by "timely furnishing to the employer" the employee’s portion. When this is done the employer shall pay the employer’s portion and forward it all to the proper office.
If the employee elects not to maintain retirement contributions during his period of absence, he may still participate in the retirement system upon his return, if he wishes. Upon his return, the employee may pay his "missed" contributions, and the employer at that time must pay the employer’s portion. Interest may not be charged an employee on such contributions; however, LASERS advises that the employer will be assessed interest on both the employee and employer’s portions of the contributions.
For other useful Retirement System Information, employees may go to the following website:
http://www.lasers.state.la.us (Look under "Hot Topics")
Teacher's retirement has military leave information available at:
If the employee elects not to maintain insurance coverage during his period of absence, upon the employee’s return that coverage must be restored for prospective coverage as if the employee had never left employment (no pre-existing condition clause will be applied). When you are notified that the employee is being called to active duty, these options should be explained to the employee and a decision obtained about how to handle retirement contributions and insurance coverage if the employee goes into a leave without pay status.
For other useful information regarding Group Benefits, employees may check with their Human Resources Office, or employees may go to the Group Benefits website: http://www.groupbenefits.org
STATE SERVICE FOR PURPOSES OF LEAVE ACCRUAL RATE, LAYOFF AND LAYOFF AVOIDANCE – all employees
The period of military absence is "state service" for purposes of layoff and layoff avoidance. Also, the period of military absence is considered "state service" for purposes of the employee’s leave accrual RATE, even if the employee is on leave without pay and not actually earning leave during his absence.
RETURN FROM MILITARY DUTY & RESTORATION TO EMPLOYMENT
Employees must return to work within certain specified time periods, and they have certain rights when they are restored to their positions. An employee’s failure to report within the required time limits can be grounds for disciplinary action up to and including termination.
Probational and permanent employees – Return to Work
Upon the return of a probational or permanent employee following military service, that employee must be restored to the position occupied before the military service, given merit increases the employee may have missed, and given the benefit of actions such as reallocations, job corrections, etc. The employee also is granted the leave accrual rate he would have had if he had not been absent.
If the employee is no longer qualified to hold that position due to disabilities sustained while in military service, he is to be placed in another position for which qualified and which is as close in duties and status as possible, with seniority and pay as if the employee had never left.
A probational or permanent employee must return to work within 90 days of the release from active duty or within 90 days after being released from hospitalization that continued after release from active duty where such hospitalization did not last for more than 1 year after discharge. The 90-day period is allowed for probational and permanent employees without regard to the length of their military service.
Job Appointees and All Other Employees – Return to Work
For job appointees and all other employees the return to work requirement is as follows:
a. for those who served less than 31 days, the employee must return, after discharge, the first full workday of the employee’s regular schedule, as long as 8 hours has elapsed since the time of discharge.
b. for those who served more than 31 days but less than 181 days, the employee must return 14 days after discharge.
c. for employees called to service for periods greater than 180 days, 90 days is the time limit for reporting.
For employees who are unclassified, job appointees, restricted appointees and provisional appointments, the provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) apply. These employees may be absent from work for five years for military duty and retain "reemployment rights", EXCEPT if the job from which the person left was for a brief, non-recurrent period and there was no reasonable expectation that the employment would have continued indefinitely or for a significant period.
If the employee left from a job that was intended to be a brief and non-recurrent appointment (such as a restricted appointment), there is no requirement that the employee be rehired upon his return from military service.
If, however, the employee left from an appointment that was intended to be longer-term or ongoing (such as a 3-year job appointment, or perhaps an on-going part-time unclassified appointment), there is no requirement to return the employee to work IF:
a. such reemployment would impose an undue hardship on the employer, OR
b. the employer’s circumstances have so changed as to make the reemployment unreasonable or inequitable.
If neither of the conditions above apply, then, after the employee’s discharge, the employer MUST return the individual to the position occupied before the military service, and the employee must be given the benefit of actions such as reallocations, job corrections, merit increases, etc., that the employee may have missed. Once returned to work, the employer may then treat such employees in accordance with the provisions of the type of appointment used for the original hiring of the employee.
If the employee is no longer qualified to hold his former position due to disabilities sustained while in military service, he is to be placed in another position for which he is qualified and which is as close in duties and status as possible, with seniority and pay as if the employee had never left.
The Department of State Civil Service may make changes to the rules in the near future, and such changes may affect the information given in this circular. When your employee goes on active duty, please obtain the name, address and phone number of a spouse or relative who may be contacted for purposes of communication.
For other useful information, you may wish to go to the following websites:
National Committee of Employer Support for the Guard & Reserve (ESGR)
http://esgr.org
Uniform Services Employment & Reemployment Rights Act of 1994 -
http://www.elaws.dol.gov/userra/wren/page2.htm
If you have situations not covered by this information, or if you believe you have unusual circumstances, please contact the Assistance Division at (225) 342-8274.
Sincerely,
Allen H. Reynolds
Director