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 10-022)

•This supplemental pay is received throughout the employee's deployment.

REEMPLOYMENT RIGHTSUSERRA

38 USCS 4312An 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 RULESection 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 SantiestebanHuman Resources Manager

Orange County Human Resources Dept.(714) 834-2846

Rosie.Santiesteban@ocgov.com