Policy Number: 4.50 - Military Leave
Efft. Date: 9/16/93 Rev. Date: 7/10/04

Permits employees to take military leave, with or without pay, for active duty in the armed services of the United States, and permits employees who are former and inactive members of the armed services, or current members of the reserve forces of any of the United States' armed services, or of the Commonwealth's militia, or the National Defense Executive Reserve to take military leave in accordance with federal and state law. Provides continued salary for employees in the Commonwealth’s Militia called up by the Governor to respond to natural or man-made disasters.

Federal

Federally funded military duty as (a) a member of the armed forces of the United States on active duty pursuant to Title 10 of the United States Code, or (b) a member of the Virginia National Guard on active duty pursuant to either Title 10 or Title 32 of the United States Code.

State

State-funded military duty pursuant to a call-up of the militia, including the National Guard, by the Governor of Virginia as provided by Va. Code §§ 44-75.1 and 44-78.1

The Uniformed Services Employment and Re-employment Rights Act of 1994. Under USERRA, employees who leave work to serve in the armed forces hold certain reemployment rights as long as they comply with notification and other requirements.

An employee is eligible for Military Leave when, during state employment, he or she

• is called to required military training,
• is called into state or federal active military service,
• is called up by the Governor under §§44-75.1 and 44-78.1 of the Code of Virginia to respond to natural or man-made disasters, or
• voluntarily enters active service in any branch of the United States military, the Commonwealth’s Militia, or the National Defense Executive Reserve.

The employees listed below shall be granted up to 15 workdays of paid military leave. A workday shall mean 1/260 of the total working hours an employee is scheduled to work during the entire federal fiscal year.

• Current members of the armed services, including members of the reserve forces of any of the United States’ armed services, who are called to:
  • participate in federally-funded military training duty or
  • report for a tour of active federally-funded duty.
• Former members of the armed services who are called to report for active duty.
• Members of the Commonwealth’s militia who are engaged in training duty or state active duty approved by the Governor or his designee.
• Members of the National Defense Executive Reserve who are senior executives called to service with the federal government or engaged in training approved by the Governor or his designee.

An employee on LWOP, including leave without pay-military, does not have access to the 15 days of paid military leave available to employees who go onto military leave from an active working status. Access is restored when the employee returns from LWOP status.

Employees are paid up to 8 hours per federal fiscal year for pre-induction and other physical examinations required for military service in addition to the 120 hours discussed above.

In the provisions below relating to annual, compensatory, and overtime leave, the employee who chooses to be paid for some or all of his or her accrued balances may elect to receive payment either (a) in a lump sum or (b) on the agency’s regular payroll schedule. The employee who chooses to use some or all of his or her accrued balances to remain in active status must use the leave consecutively. Sporadic use of paid leave is not permitted.

The employee may elect during military leave to receive a lump sum payment for any retained leave balances that qualify to be paid.

At the employee’s option, all or part of annual leave balances held at the beginning of active military duty may be

• applied to the period of absence due to military service;
• paid up to the allowable payment limit at the time of placement on leave without pay; and/or
• retained until reinstatement from military leave without pay.

A full-time state employee who is a member of the organized reserve forces of any of the armed services of the United States or of the Virginia National Guard may carry forward all excess accrued annual leave hours to be retained as Military Bank leave (MB). When the yearly carry-over adjustments to annual leave are made on January 10 of each year, the amount of leave in excess of the allowable carry-over amount shall be added to the employee's MB category if that employee has an MR (Military Reserve) or NG (National Guard) designation in PMIS and has authorized accrual of MB leave through his or her agency.

Hours over the normal carryover limits retained as Military Bank leave may be used only during active military duty as provided by Va. Code § 2.2-2903.1. Military Bank leave may not be paid out or credited in any other form to the employee. It is either used during active military duty or it lapses upon separation, retirement, or death. See Policy 4.20, Annual Leave.

Using Military Bank Leave

An eligible full-time employee whose excess annual leave has been retained as Military Bank leave may apply any such banked leave at the beginning of active military duty. Employees beginning active military duty should indicate their request to use Military Bank leave, and other accrued leave, on their Military Leave Worksheet (see attachment A).

Military Bank leave may be applied to the period of absence due to active military duty in the same way that other accrued leave is applied. Regular payroll deductions continue. Sporadic use of MB leave is not permitted.

An employee on active military duty may choose to retain all or part of his or her Military Bank leave. The balance will remain available for use only during future periods of active military duty.

Compensatory Leave

At the employee’s option, all or part of compensatory leave balances held at the beginning of active military duty may be

• applied to the period of absence due to military service;
• paid as allowed by policy at the time of placement on leave without pay; and/or
• retained until reinstatement from military leave without pay. Retained compensatory leave will be available for use for one year following reinstatement.

Overtime Leave

At the employee’s option, all or part of overtime leave balances held at the beginning of active military duty may be

• applied to the period of absence due to military service;
• paid up to the allowable accrual limit at the time of placement on leave without pay; and/or
• retained until reinstatement from military leave without pay.

Overtime leave balances are paid at the employee’s regular rate of pay or the average rate received by the employee during the last three years of employment, whichever is higher.

Sick Leave – Traditional

Employees participating in the Traditional Sick Leave program under Policy No. 4.55, Traditional Sick Leave, have these options for their accrued sick leave balances:

• Employees with less than five years of continuous state service at the beginning of military leave without pay retain their sick leave balances, which are reactivated upon reinstatement to state service.
• Employees with five or more years of continuous state service at the beginning of military leave without pay may:
  • retain their entire sick leave balances to be reactivated upon reinstatement to state service, or
  • be paid for 25% of their sick leave balances up to $5,000. If paid, the remaining 75% of the balance lapses and will not be restored upon their reinstatement to state service.

At the employee’s option, family and personal leave balances under VSDP may be applied to the period of absence due to military service. Family and personal leave balances not used will lapse on January 9 and will be credited in accordance with VSDP policy when the employee returns to state service.

Any unused balance of VSDP sick leave held at the beginning of LWOP-military will be retained pending the employee’s return. If the employee remains on LWOP at the end of the leave year (January 9), these balances will expire. When the employee returns to state service, new balances are provided in accordance with VSDP policy.

Coverage will continue through the end of the month in which the leave without pay begins. If the employee returns from leave the following month, and works at least one-half of the workdays in the month, coverage will not lapse.

Coverage for Active Military Duty/LWOP for more than 14 days –  Employees called to active military duty whose active state employee benefits will lapse due to being placed on military leave without pay will be offered benefits for themselves and their covered dependents in Extended Coverage for up to 24 months. These employees and dependents are eligible for federal health benefits. However, they will be allowed to continue health benefits with the State Program and upon election of Extended Coverage will receive the State contribution for up to 24 months without an administrative fee. Beyond the 24-month period, conversion to non-group coverage is available.

Premium Conversion

All health care premiums are deducted on a pre-tax basis. Premiums for the month in which leave without pay begins may be collected either by a lump sum pre-tax payroll deduction or on an after-tax basis by personal check.

Medical Reimbursement Accounts - Participating employees who are called to active duty may continue participation through the end of the plan year. The participant's elected contributions for the period of leave must be collected either by a lump sum pre-tax payroll deduction, or monthly on an after-tax basis by personal check.

Alternatively, within 31 days of taking an unpaid leave of absence, the employee may elect to discontinue participation in the medical reimbursement account. Coverage will cease on the first day of the month after the employee begins an unpaid military leave of absence. Elected contributions for the final month of coverage may be collected on a pre-tax basis by lump sum deduction or on an after-tax basis by personal check. The employee can be reimbursed for expenses incurred through the end of the final month of coverage.

USERRA lists eight categories of service that are exempt from the five-year limitation. These include:

• service to complete an initial period of obligated service;
• service from which the employee through no fault of his or her own cannot obtain a release within the five year limit (e.g., a service member on deployment at sea when the five year limitation expires);
• required training for reservists and National Guard members;
• service under an involuntary order for active duty during domestic emergency or national security related situations;
• service on active duty because of a war or national emergency declared by the President or Congress (other than training);
• active duty by volunteers supporting “operational missions” for which Reservists have been ordered to active duty without their consent (other than for training);
• service by volunteers ordered to active duty in support of a “critical mission or requirement” in times other than war or national emergency and when no involuntary call up is in effect; and
• 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.

Employees remain eligible for reinstatement to previous positions for a cumulative period of up to five years of active duty. (Note the eight categories of service exempt from the five-year limitation listed above.) That eligibility may be extended for up to two additional years only when:

• extension of active military service is requested by and for the convenience of the federal government;
• a longer state active duty period is fixed by the Governor; or
• hospitalization resulting from active duty continues after discharge.

Requests for reinstatement must be made to the agency either orally or in writing. They should state that the person is seeking reinstatement to his or her former employment upon return from military service.

These requests should include certificates or release orders that confirm satisfactory completion of military service and provide the date of discharge.

NOTE: The state is not obligated to reinstate an employee who has not satisfactorily completed military service or training. Eligibility for reinstatement must be evaluated on an individual basis, taking into consideration the employee's military record and work history with the state. Additionally, an employee may not return to his or her classified position prior to the date of discharge shown on the official discharge documents.

Employees must request reinstatement within 90 calendar days of the day after release from active duty. Employees remain on Military LWOP during the permitted period of time between discharge from active military duty and reinstatement to active state employment.

Disability incurred or aggravated. The reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing because of a disability incurred or aggravated during the period of military service. This period will be extended by the minimum time required to accommodate a circumstance beyond an individual’s control that would make reporting within the two-year period impossible or unreasonable.

Employees will be reinstated to their previous positions or to comparable positions in terms of pay, status, and location when they meet the minimum qualifications for the position. If employees no longer meet the minimum qualifications of their former positions because of changes in job duties, they must meet the changed requirements within a reasonable time after re employment, or be offered positions requiring skills comparable to those required in former jobs with like seniority, status, pay, and location.

Before being placed in other positions, employees should be offered training to increase their ability to perform the jobs, if such training would have been available to them if no military service had occurred.

When an agency's circumstances have changed, thereby making it impossible or unreasonable to reinstate the employee, it may take one of the following actions.

Comparable position available – If employees' formerly-held positions have been abolished, they shall be placed in positions comparable in Pay Band and pay to those previously held.

NOTE: If the nature and level of duties of a current position are substantially similar to those of the returning employee’s pre-service position, a change of title does not justify the conclusion that the pre-service position has been abolished.

Comparable position not available – If comparable positions are not available, employees shall be considered affected by a reduction in force, and the provisions of Policy. 1.30, Layoff, shall apply.

Employees' periods of military leave without pay will be included as state service when determining their rates for accruing annual leave.

If an employee chooses to receive pay for accrued annual leave when going on LWOP-military and then returns to state service within 180 days, he may buy back the annual leave for which he was paid by reimbursing the full amount received to the paying agency.

When the employee returns to state service, the employee may make health benefits elections to enroll in a plan and select a membership level if the employee was gone for more than 30 days.

If the employee returning from military leave without pay was gone less than 30 days, the employee must return to the same plan and membership level in which he or she was enrolled prior to the leave. Premiums will be deducted on a pre-tax basis. Benefits coverage will become effective either on the first day of the month of his or her reinstatement to active state employment, or on the first day of the month following the date of his or her reinstatement to active state employment, provided that the employee submits the appropriate paperwork within 31 days of reinstatement from military leave without pay.

If the employee returning from military leave without pay was gone less than 30 days, the employee must return to the reimbursement account(s) elections he or she had prior to the leave.

If the employee returning from military leave without pay was gone more than 30 days, the employee may make new elections for both the Medical and Dependent Care Accounts provided that the employee submits the appropriate paperwork within 31 days of reinstatement from military leave without pay. The account(s) will be effective the first of the month following the receipt of the completed paperwork.

• Any salary changes that affected all other agency employees who occupy positions in the employees’ Roles (such as Re-Banding, general salary increases, or Role Changes) must be applied to the returning employees. (See Policy 3.05, Compensation.)
• Performance increases are to be applied as if employees' service continued uninterrupted during the period of military leave. (See Policy 1.40, Performance Planning and Evaluation.)

Classified employees shall provide to agency heads or their designees copies of orders documenting dates and types of required military training, physical examination, or active duty from appropriate military officials, including discharge documentation. Employees must also provide other required documentation as requested by their agencies. For example, an employee on military leave without pay must submit a Leave and Earnings statement (LES) to receive the Active Military Supplement.

Employees must request military leave, indicating the type of military leave for which they are applying. For example, they must indicate leave with or without pay. If leave with pay, they should designate the type of leave, including whether and how any accrued leave is to be applied. See Military Leave Worksheet, Attachment A.

Employees requesting to use Military Bank leave must certify that they were eligible to accrue Military Bank leave by their membership in the National Guard or the Military Reserves.

In case of emergency orders to military service, employees must notify supervisors as soon as possible, and complete leave request forms when feasible, or upon return.

Employees seeking reinstatement to state employment after a period of active military duty must make their requests in accordance with USERRA and other requirements given in this policy.

Agencies should inform employees who are called to active military service of their rights, status, and obligations to the state during and after their period of active duty.

Agencies should establish guidelines for employees to follow for submitting requests for military leaves of absence and for monitoring such leaves to ensure that no more than 15 work days (1/260 of an employee’s regular scheduled work hours during federal fiscal year) with pay are granted for military training and active duty in a federal fiscal year. Agencies may also need to collect and maintain information related to employees’ military status, earnings, or other data. For example, agencies must verify an employee’s eligibility for the Active Military Supplement and calculate the amount of supplement due by reviewing the employee’s military Leave and Earnings Statement.

Agencies should update employee records in PMIS to reflect

• membership in the National Guard (NG) or Military Reserves (MR);
• leave with or leave without pay-military status;
• receipt of the military supplement; or
• reinstatement or separation.

Agencies must develop appropriate forms and procedures for recording the employee’s request to carry over excess annual leave as Military Bank leave, must verify the employee’s eligibility for Military Bank leave, and must ensure that correct leave records are maintained.

Termination from Military Leave

The termination report of an employee on paid Military Leave who resigns or is terminated from state service will show the last day of paid leave as the separation date. If an employee on Military Leave Without Pay resigns or is terminated, the termination report will show the separation date as the date the notification of resignation is received, or the date of the termination action.

The Department of Human Resource Management issues this policy pursuant to the authority provided in Chapter 10, Title 2.2 of the Code of Virginia.

The Director of the Department of Human Resource Management is responsible for official interpretation of this policy, in accordance with section 2.2-1201 of the Code of Virginia.

• Policy 3.10, Compensatory Leave
• Policy 3.15, Overtime Leave
• Policy 4.10, Annual Leave
• Policy 4.45, Leave Without Pay – Conditional/Unconditional
• Policy 4.55, Traditional Sick Leave
• Policy 4.57, Virginia Sickness and Disability Program