Military Leave Policy -Section III, D: Right to Reemployment

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Including Uniformed Services Employment & Reemployment Rights Act (USERRA) and the California Military & Veterans Code (CMVA)

Revised: April 2014

Read next: Section III, E - Pay and other Benefits

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• Section III, D, 1: Return to Work – Notice Provisions
• Section III, D, 2: Return to Work – Position Placement

III, D: Right to Reemployment

Under USERRA⁴, employees returning from military leave shall have the right to reemployment if:

• The employee has given advance written or verbal notice of such military service to the County.
• The cumulative length of the absence and of all previous absences for a position of employment with the County by reason of military service does not exceed five years unless an exception has been approved (see “Length of Absence”).
• The employee was not separated from military service with a disqualifying discharge or under other than honorable conditions.
• The returning employee reports orally or in writing to the County, the employee’s intent to return. It is preferred that the employee do so by submitting a reemployment application to the County in accordance with the notice provisions listed below.

1. 1. Return to Work – Notice Provisions⁵

      • A person who fails to report to work or to apply for reemployment in accordance with the below shall forfeit any applicable legal protections and rights and shall be subject to the rules and procedures of the County regarding unexcused absences from work.
      • A service member who is hospitalized or convalescing from an illness or injury incurred or aggravated during the performance of military service must submit an application for reemployment no later than two years following completion of service.
      1. Temporary Military Leave
         • A person whose military service lasted from 1 to 30 days must report to the County by the beginning of the first full regularly scheduled work day on the first full calendar day following the completion of the period of service and the expiration of eight hours after a time for the safe transportation back to the individual’s residence.
         • A person whose military service lasts from 31 to 180 days must submit a reemployment application (verbally or in writing) with the County no later than 14 days after the completion of the period of service.
      2. Military Leave
         • A person whose military service lasts more than 180 days must submit a reemployment application (verbally or in writing) with the County no later than 90 days after the completion of the period of service.
      3. National Guard and Reserves
         • Members of the National Guard ordered into service by the Governor or President, or a member of the United States Military reserve called to full-time active duty will be afforded up to 40 days after release from service in which to submit a reemployment application, regardless of the length of service. To the extent federal law affords a greater length of time, the employee shall be afforded such greater time period.

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   2. Return to Work - Position Placement

      1. California Military and Veterans Code Reemployment Rights⁶
         Under state law, employees called to temporary military duty (180 days or less including time going to and returning from that duty) are entitled to be restored to their former position upon termination of military duty. If the position has been abolished or otherwise has ceased to exist during the employee’s absence (i.e., work outsourced, layoffs, etc.) the employee shall be reinstated to a position of like seniority, status, and pay if a position exists. If no position exists, the employee will be granted the same rights and privileges that he/she would have had if they had occupied the position when it ceased to exist (see Civil Service Rule 11, Layoffs). Employees who served in a temporary capacity prior to leave, with no reasonable expectation that such employment will continue indefinitely or for a significant period (i.e., extra-help employees), do not necessarily have reemployment rights.
         
         Employees returning from military leave will be afforded all available protections under state and/or federal law, whichever gives the employee the broadest protections.
      2. USERRA Re-Employment Rights
         An employee returning to County service is entitled to reemployment if the duty lasted less than five years (see “Length of Absence”), and he/she reports/applies for reemployment within the time frames specified under USERRA:
         • Less than 91 days of military service - A person serving from 1 to 90 days⁷ will be reemployed in the position the person would have attained if employment had not been interrupted by military service, so as long as the person is qualified for the position or can become qualified after reasonable efforts by the supervisor to qualify the person, or if found not qualified for such position after reasonable efforts by the County to qualify the person, in the position of employment in which the person had been employed on the date of the commencement of the service in the uniformed services. If the position has been abolished or otherwise has ceased to exist during the employee’s absence, the employee shall be reinstated to a position of like seniority, status, and pay if a position exists. If no position exists, the employee will be granted the same rights and privileges that he/she would have had if they had occupied the position when it ceased to exist (see Civil Service Rule 11, Layoffs). Employees who served in a temporary capacity prior to leave, with no reasonable expectation that such employment will continue indefinitely or for a significant period (i.e., extra-help employees), do not necessarily have reemployment rights.
         • More than 90 days and less than 5 years of military service - A person serving 91 days or more⁸ will be reemployed in the position the person would have attained had employment not been interrupted by military service, or a position of like seniority, status and pay, so long as the person is qualified for the position or can become qualified after reasonable efforts are made by the County to qualify the person. In the event an employee is not qualified to perform the duties of such position after reasonable efforts by the County to qualify the employee, then he/she will be reinstated to the position the employee left, or a position of like seniority, status and pay, the duties of which the person is qualified to perform.

         Employee with a military service connected disability

         For employees with disabilities incurred or aggravated while in military service, the County will make reasonable efforts to accommodate the employee’s disability. If after reasonable accommodation efforts by the County an employee with a service-connected disability is not qualified for employment in the position he/she would have attained or in the position that he/she left, the employee will be employed in any other position of similar seniority, status and pay for which the employee is qualified or could become qualified with reasonable efforts by the County; or if no such comparable position exists, the employee will be employed in a position in the nearest approximation to the employee’s position for which they are qualified or could become qualified with reasonable efforts by the County.

      3. Length of Absence
         The County will restore to employment, in accordance with USERRA provisions, employees returning from a leave of absence necessitated by military service, provided the length of absence does not exceed five (5) years (cumulative length). As provided by USERRA⁹, exceptions to the five year limit will be made for:
         • Service required beyond five years to complete an initial period of obligated service.
         • Service from which an employee, through no fault of the person, is unable to obtain a release within the five year period.
         • Required training for members of the National Guard and Reserves.
         • Service under an involuntary order to active duty or to be retained on active duty, during a domestic emergency or national security related situations.
         • Service under an order to, or to remain on, active duty, because of a war or national emergency declared by the President or Congress.
         • Active duty (other than for training) by volunteers supporting “operational missions” for which selective reservists have been ordered to active duty without their consent.
         • Service by volunteers who are ordered to active duty in support of a critical mission or requirement in times other than war or national emergency when no involuntary call up is in effect.
         • Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion or to execute the laws of the United States.

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⁴ USERRA, Section 4312(a)
⁵ USERRA, Section 4312 et seq
⁶ California Military and Veterans Code, Section 395(c)
⁷ USERRA, Section 4313
⁸ USERRA, Section 4313
⁹ USERRA, Section 4312

See: Title 38, U.S. Code; Chapter 43