Military Reservists Called to Active Duty

Clients have asked for an update on how to treat leave requests for school employees ordered to active duty as members of a military reserve unit or the National Guard. While the law has not changed since our September 2001, client advisory memo, we are sending you this expanded edition.

In the event of a call-up, school employees with more than one year of employment must be given 30 days’ pay and health plan benefits, and after 30 days must be allowed to self-pay for group health plan coverage.

Federal law provides significant reemployment rights for military reservists (i.e., members of the various reserves and the National Guard) who are called to active duty (see 38 U.S.C. section 2024 and sections 4301, et seq.).

A person who leaves work to perform military duty lasting no more than five years (longer if certain exceptions apply) has a right to restoration to employment if he or she makes a timely application for reemployment. Application time limits vary, depending on the length of military service. For absences of 30 days or less, no documentation is required, but the employee must report back to work by the beginning of the first regularly scheduled work day that would fall eight hours after the employee returns home. For absences of 30 to 180 days, an application for reemployment must normally be submitted no later than 14 days after the completion of military service. For absences of more than 180 days, the application must normally be submitted no later than 90 days after the completion of military service.

As a general rule, the returning employee is entitled to reemployment in the position he or she would have held had the person remained continuously employed. There are several exceptions, such as:

1. Employer economic hardship or intervening layoffs;.

2. Employee inability to meet established physical requirements; or

3. Other changes in the employer’s circumstances that render reemployment unreasonable or impossible.

State law augments these federal reemployment rights for public employees by requiring public agencies to continue paying most of their employees for 30 days after they are called to active duty.

California Military and Veterans Code (for all public employees):

The Military and Veterans Code, starting at section 395, provides that all public employees who have been employed by the public agency for at least one year prior to their call-up are entitled to receive their regular salary from that agency for the first 30 days of their active military service. This entitlement is in addition to any military pay. Moreover, offsets are not allowed against any military pay during training purposes in conjunction with active duty. The state law benefit is capped at 30 days pay for each call-up or in the same school/academic year. (See wording at Military and Veterans Code section 395.03).

Education Code (public school employees):

The California Education Code, at section 45059 (K-12 system) and section 87832 (community colleges), provides the following salary and benefits to reservists for their first 30 days of active military duty:

1. Certificated employees are entitled to one-tenth of their annual salary; while

2. All other employees are entitled to one month’s salary.

During the first 30 days, the employer is also obligated to make those payments it would otherwise make to continue health and welfare benefits for that month. At the expiration of this period, employees would be entitled to self-pay to continue group health coverage.

Any military leave request should be documented. At present, most employees should have no difficulty in providing the requisite documents before going on military leave.

Should any problems arise or if you need advice or assistance in dealing with military leaves, please contact us.