topleft CSBA.org >  Services >  Governance Technology > 

Lawndale ESD |  AR  4161.5  Personnel

Military Leave   

arrow Previous bar Next arrow

Purposes of Leave

Military leave shall be granted to any district employee who:

1. Is a member of the reserve corps of the United States Armed Forces, National Guard or Naval Militia who, on a temporary basis, is engaged in active military training, encampment, naval cruises, special exercises, or like activity, provided that: (Military and Veterans Code 395, 395.01)

a. The ordered duty does not exceed 180 calendar days, including time involved in going to and returning from such duty.

b. The employee has been an employee of the district for at least one year immediately prior to the day the military leave begins. All recognized military service performed prior to and during district employment shall count toward the period of time that the employee has been employed by the district.

2. Has served with the district for at least one year and is ordered, on other than a temporary basis, into active military duty as a member of the reserve corps of the United States Armed Forces, National Guard or Naval Militia or who otherwise is inducted, enlisted, entered, ordered or called into active duty as a member of the Armed Forces (Military and Veterans Code 395.02)

3. Is a member of the National Guard, however long employed by the district, who is engaged in military or naval duty during a state of extreme emergency as declared by the Governor or during such time as the National Guard may be on active duty in situations described in Military and Veterans Code 146, provided that the leave does not exceed the duration of the emergency (Military and Veterans Code 395.05)

4. Is a member of the reserve corps of the United States Armed Forces, National Guard or Naval Militia who is engaged in temporary inactive duty training under the conditions described in items #1a-b above (Military and Veterans Code 395)

5. Is a member of the State Military Reserve who is engaged in temporary military training, drills, unit training assemblies or similar inactive duty, not to exceed 15 calendar days each year (Military and Veterans Code 395.9)

6. Enters active military service in the United States or State of California, including a uniformed auxiliary of any branch of military service, the United States Merchant Marines, or full-time paid service of the American Red Cross, during any period of war or national emergency (Education Code 44800; Military and Veterans Code 395.2)

(cf. 4161/4261 - Leaves)

(cf. 4361 - Leaves)

An employee's cumulative length of the absence and of all previous military leave shall not exceed five years, excluding those training and service obligations specified in 38 USC 4312. (38 USC 4312)

Notification of Leave

An employee who needs to be absent from the district to fulfill military service shall provide advance written or verbal notice to the Superintendent or designee, unless the giving of such notice is precluded by military necessity or is otherwise impossible or unreasonable. (38 USC 4312)

Compensation During Leave

An employee shall receive his/her salary for the first 30 calendar days of an absence for the purposes described in items #1-3 above. A National Guard member is entitled to receive his/her salary for the first 30 days regardless of length of employment. (Military and Veterans Code 395, 395.01, 395.02, 395.05, 395.07)

The 30-day pay entitlement is the maximum allowance which shall be paid for any one military leave or during any one fiscal year. (Military and Veterans Code 395.03)

For classified employees, 30 days compensation shall be one month's salary. For certificated employees, 30 days compensation shall be one-tenth of the employee's annual salary. (Education Code 45059)

Teachers shall not be entitled to compensation during non-teaching, non-paying months of the year.

During the period of military leave, an employee may, but is not required to, use any vacation or similar paid leave accrued before the commencement of the military leave. (38 USC 4316)

Benefits/Employment Status

Absence for military leave shall not affect the classification of any certificated employee. In the case of a probationary employee, the period of such absence shall not count as part of the service required to obtain permanent status, but shall not be construed as a break in the continuity of service for any purpose. (Education Code 44800)

(cf. 4116 - Probationary/Permanent Status)

An employee on temporary military leave, including an employee in the National Guard, shall continue to accrue the same vacation, sick leave or holiday privileges for up to a maximum period of 180 days, provided he/she has been employed by the district for at least one year immediately prior to beginning the leave. (Military and Veterans Code 395)

An employee on military leave for active duty shall not accrue sick leave or vacation leave. However, an employee who is a National Guard member on active duty shall accrue vacation and holiday privileges, but not sick leave, for the first 30 days of active service, regardless of his/her length of service with the district. (Military and Veterans Code 395.1, 395.05)

(cf. 4161.1/4361.1 - Personal Illness/Injury Leave)

(cf. 4261.1 - Personal Illness/Injury Leave)

An employee on military leave may be required to pay the employee cost, if any, of any funded benefit to the extent that other employees on leave are so required. (38 USC 4316)

An employee may elect to continue his/her health coverage during the leave. The maximum period of coverage for the employee and his/her dependents shall be either 18 months from the beginning of the leave or until the day after the employee fails to apply for or return to employment, whichever is less. An employee absent for 30 days or fewer shall not be required to pay more than the employee share for such coverage. An employee absent for 31 days or more may be required to pay not more than 102 percent of the full premium under the plan. (38 USC 4317)

Pension Plan Service Credit

Pension plan service credit and vesting shall continue during an employee's military leave as though no break in service has occurred. Payment of employer and employee contributions shall be made in accordance with law for members of the State Teachers' Retirement System and Public Employees' Retirement System. (Education Code 22850-22856; Government Code 20990-21013)

Reinstatement Rights

At the conclusion of the military duty, an employee shall be entitled to return to the position held at the beginning of the military leave, at the salary to which he/she would otherwise have been entitled. (Education Code 44800; Military and Veterans Code 395, 395.2)

An employee who performs active military duty in time of war or national emergency has a right to return to his/her position within six months of an honorable discharge or placement in inactive duty. Reemployment rights shall not be extended to any such employee who fails to return within 12 months after the first date upon which he/she could terminate or could cause to be terminated his/her active service. (Education Code 44800, Military and Veterans Code 395.1)

When an employee has been on military leave for reasons other than war or national emergency, the time frame for reinstatement shall depend on the length of military service as follows: (38 USC 4312)

1. For a leave of 30 days or fewer, the employee shall report for duty no later than the beginning of the first full calendar day following the completion of military service

2. For a leave of 31 to 180 days, the employee shall complete an application for reemployment not later than 14 days after the completion of military service

3. For a leave of more than 180 days, the employee shall submit an application for reemployment within 90 days after the completion of military service

An employee failing to apply for reemployment within the appropriate period does not automatically forfeit his/her rights, but shall be subject to the Board's rules governing unexcused absences. (38 USC 4312)

The employee shall be promptly reinstated upon request. (38 USC 4313)

If the employee's previous position has been abolished, he/she shall be reinstated in a position of like seniority, status and pay if such position exists, or to a comparable vacant position for which he/she is qualified. (Military and Veterans Code 395, 395.1)

An employee may not be reemployed if the district's circumstances have so changed as to make such reemployment impossible or unreasonable; if the accommodation, training or effort described in 38 USC 4313(a)(3), (a)(4) or (b)(2)(B) would impose an undue hardship on the district; or if the employee's position was for a brief, nonrecurrent period and there was no reasonable expectation that such employment will continue indefinitely or for a significant period. (38 USC 4312)

Legal Reference:

EDUCATION CODE

22850-22856 Pension benefits, STRS members on military leave

44800 Effect of active military service on status of employees

45059 Employee ordered to military/naval duty - computation of salary

GOVERNMENT CODE

18540 Definition of armed forces

18540.3 Recognized military service

20990-21013 Pension benefits, PERS members on military leave

MILITARY AND VETERANS CODE

146 Events justifying calling of militia into active service

389 Definition of temporary military leave

395-395.9 Military leave

UNITED STATES CODE, TITLE 38

4301-4333 Uniformed Services Employment and Reemployment Rights Act of 1994

COURT DECISIONS

Wright v. City of Santa Clara (1989) 213 Cal. App. 3d 1503

Bowers v. San Buenaventura (1977) 75 Cal. App. 3d 65

ATTORNEY GENERAL OPINIONS

77 Ops.Cal.Atty.Gen. 209 (1994)

69 Ops.Cal.Atty.Gen. 185 (1986)

63 Ops.Cal.Atty.Gen. 924 (1978)

19 Ops.Cal.Atty.Gen. 132 (1952)

18 Ops.Cal.Atty.Gen. 178 (1951)

Management Resources:

U.S. DEPARTMENT OF LABOR PUBLICATIONS

A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA), February 2001

WEB SITES

U.S. Department of Labor, Veterans' Employment and Training Service: http://www.dol.gov/dol/vets

National Committee for Employer Support of the Guard and Reserve: http://www.esgr.org

Regulation LAWNDALE ELEMENTARY SCHOOL DISTRICT

Approved: September 15, 2003 Lawndale, California