MILITARY LEAVES
MILITARY LEAVE LAWS
•
An employee called to active military duty is entitled to a
leave of absence from his or her job under both State and
Federal Law.
•
In California a public employee who has been employed for at
least one year is entitled to 180 days of military leave for such
things as active or inactive military training, encampments,
navel cruises, or special exercises. (Cal. Mil. & Vet. Code
sec. 395)
•
Under Federal law an employee is entitled to reemployment
rights after serving in the armed forces so long as his/her
absence from civilian employment does not exceed 5 years.
(38 USCS sec. 4312)
CALIFORNIA PUBLIC
EMPLOYEE BENEFITS
•
In California a public employee
is entitled up to 30 calendar
days paid leave for military
service per fiscal year. (Cal.
Mil. & Vet. Code sec. 395.02)
•
Although not required a public
employer may provide paid
military leave for inactive duty
training. (Cal. Mil. & Vet. Code
sec. 395(b))
•
A public employee has the
absolute right to reemployment
to his/her former position. (Cal.
Mil. & Vet. Code sec. 395(c))
ORANGE COUNTY
MILITARY BENEFITS
•
OC Employees receive
supplemental pay to
cover the difference
between his/her military
pay and his/her County
pay. (OC Resolution 10022)
•
This supplemental pay
is received throughout
the employee's
deployment.
REEMPLOYMENT RIGHTS
USERRA
38 USCS 4312
An Employee is entitled to reemployment so long as he/she
~Provides notice either verbal or written.
~The cumulative length of absence does not exceed 5 years.
~Employee submits an application for reemployment.
Exceptions to Section 4312(a)
There are exceptions to each of these requirements. In
some circumstances notice is not required, in many
circumstances the service time does not apply to the five
year limit and in some circumstances the employee does
not have to apply for reemployment.
The most common issue that requires analysis is the
application of service time to the five-year rule.
See 38 USCS sec. 4312(b)(c)(d)(e).
EXCEPTIONS TO THE 5-YEAR RULE
Section 4312 (d)
1) The required service is beyond five years to complete an initial period of
obligation.
2) The person is unable to secure orders for his release from duty prior to the five
year period expiring.
3) The service is required pursuant to various sections under the Act in order to
fulfill additional training as certified in writing by the Secretary concerned.
4) The employee is ordered retained under provisions of law due to a war or
national emergency declared by the President or Congress.
5) Ordered retained in support of a mission as determined by the Secretary
concerned.
6) Ordered into active duty in support of a critical mission by the Secretary
concerned.
ARE WE AT WAR?
•
According to the military yes however for
the service time not to be counted
towards the five-year limit an employee’s
orders need to clearly state that.
•
Orders now frequently say, "Under
provision of Title 38 USC Sec.
4312(c)(4)(A) and (B) this period of
active duty is excluded from the five-year
cumulative service limitation on
reemployment rights..."
•
Orders that do not include this language
can be counted towards the 5-yr. limit.
FMLA AND MILITARY
LEAVE
•
FMLA allows employees
to take two military
service related leaves:
•
Qualifying Exigency (20
CFR 825.127)
•
Military Caregiver (29
CFR 825.127)
QUALIFYING EXIGENCY
(12 WEEKS)
•
Short Notice Deployment
•
Military Events and Related Activities
•
Childcare and School Activities
•
Financial and Legal Arrangements
•
Counseling
•
Rest and Recuperation
•
Post Deployment Activities
•
Additional Activities
(29 CFR 825.128)
Military Caregiver Leave
(26 Weeks)
Military Caregiver Leave is leave to care for injured
service member who is the employee’s child, spouse,
parent or next of kin. (29 CFR 825.127)
If you have an employee that is requesting
military leave contact:
Rosie Santiesteban
Human Resources Manager
Orange County Human Resources Dept.
(714) 834-2846
[email protected]