Temporary Military Leave
Chapter 431 of the Texas Government Code requires Harris County to provide up to 15 days of paid military leave for members of the state militia and for federal military reservists during each federal fiscal year. The federal fiscal year starts October 1st and ends September 30th. Thus, Harris County pays an employee on active military duty up to 15 days each federal fiscal year. The paid temporary military leave policy is in § 15.02 of the Harris County Personnel Regulations (effective January 1, 2004).
Both state and federal law require Harris County to provide certain protections for Military Leave longer than "temporary military leave." Chapter 613 of the Texas Government Code requires Harris County to provide job restoration to reservists after a period of active duty. The current federal protection for military leave is found in the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA" or "the Act"). These laws make several specific mandates to employers regarding treatment of members of the armed forces during and after military service. The paragraphs that follow describe the basics of those protections. If you have any questions regarding military leave that are not addressed below, direct those questions to the Harris County Attorney's Office.
Who is protected
USERRA protects members of the Armed Forces (Army, Navy, Air Force, Marines, and Coast Guard), the Army National Guard, the Air National Guard, and the commissioned corps of the Public Health Services. State law protects members of the Armed Forces (active duty or reserve), plus members of the Texas National Guard and the State Guard, only.
USERRA (and probably the state law) protects not only those people who are already reservists when you hire them, but also people who voluntarily enlist (active duty or reserves) even after they have been hired.
Length of protection
An employee is entitled to USERRA protection until his cumulative period of absences from his position with an employer caused by service in the uniformed services reaches five years. However, the Act contains a long list of exceptions, i.e. duty periods that do not count toward the five-year maximum. Those exceptions include annual reserve training requirements (i.e. monthly reserve weekends and three-week "summer" periods). Thus, the exceptions virtually swallow the rule. If you have any question with regard to whether an employee's active duty period counts toward the 5-year limit under USERRA, please contact the Harris County Attorney's Office directly. Be prepared to provide a copy of the employee's duty orders.
A person also loses USERRA rights if his military service ends in a dishonorable or bad conduct discharge, he separates from the military under "other than honorable conditions", or an officer gets dismissed after a court-martial, going AWOL for three months, or having a final non-military criminal conviction.
As you will see below, state law only provides job protection and protection from at-will employment for a limited time after the employee returns to work.
Employee notification requirements
Usually, an employee gets written duty orders in advance from her commanding officer. If the employee has written orders, she should provide a copy to the employer. Nothing in the Act prevents an employer from adopting a policy requiring employees to provide the notice as soon as possible. In fact, the regulations implementing USERRA "strongly encourage" employees to provide notice as early as practicable and at least 30 days prior to their leave. But the Act excuses employees from providing advance notice of the need for leave to employers when giving notice is precluded by military necessity or the giving of such notice is otherwise impossible or unreasonable. Note that § 15.01 of the Harris County Personnel Regulations requires employees to provide notice "before leaving. Normally, notification should occur within 24 hours of receipt of the order." Do not discipline an employee or refuse to grant military leave to an employee because he has not provided his duty orders without consulting with the Harris County Attorney's Office.
Rights while the employee is away
No right to paid leave¹ - Nothing in USERRA requires employers to pay employees while they are on protected military leave. Instead, during the employee's absence, the County treats the employee as if he were on leave of absence.
USERRA prohibits employers from requiring reservists to exhaust their paid leave while on active duty. But if the reservist asks to use paid leave, the employer must allow it. When Harris County offers a supplemental pay policy, the County requires reservists to exhaust their paid leave first. This requirement does not violate USERRA because the employee receives the opportunity to recover supplemental pay, which is over and above what USERRA requires.
Health benefits - USERRA requires the County to maintain the employee's coverage for the first 30 days of the deployment at the rate the employee usually pays for coverage. After that, the County must offer continuation coverage under COBRA. Currently, Harris County is covering reservists continuously while they are on military leave. But the employee must continue to make dependent premium contributions while on military leave to continue coverage for dependents. If you have questions with regard to health benefits coverage, please contact HRRM.
Rights upon return to work
Deadlines for re-applying - Reservists who want to return to work must notify the Department of their intent to return within timelines that are dependent upon how long the period of military service was.
a. Less than 31 days
Must report back to work no later than the beginning of his
regularly-scheduled shift on the first full day after his active
duty period expired allowing for 8 hours of rest and time to
return home safely from the place of service
b. More than 30 days but less than 181 days
Must return not later than 14 days after the completion of the active duty
c. More than 180 days
Must return not later than 90 days after the completion of the active duty.
If a person's return to duty is delayed because he is hospitalized or recovering from an illness or injury incurred during the military leave, please contact the Harris County Attorney's Office to find out the reservist's deadline for re-applying.
If someone fails to meet these deadlines, then the County simply applies its regular rules with regard to absences from scheduled work. This would include the No Fault Attendance policy found in § 23.05 of the Harris County Personnel Regulations.
Both state and federal law permit the County to ask for documentation to prove that the person meets the qualifications for protection, i.e., the date the military leave ended, whether the employee separated from the military in good standing, and that the person has not exceeded the service limits. The law contains several exceptions to this rule that benefit the employee. Therefore, do not delay restoring an employee to work based on a lack of documentation without consulting the Harris County Attorney's office.
Position upon return - As with the deadlines for returning, the position the employee is entitled to depends upon how long the tour of active duty was and the circumstances of the particular person.
a. Less than 91 days
The "escalator" position, that is, the position the person
would have been employed if he had been continuously
employed during the military leave
b. More than 90 days
The "escalator" position or a position of like seniority,
status and pay, the duties of which the person is qualified to perform
Regardless of the period of service, if an employee suffered a disability or aggravated a disability during the period of service, the Act requires the County to attempt to accommodate the employee to try to get her back to work. Contact the Harris County Attorney's Office if a returning employee has a disability or is unqualified to perform the duties of the escalator position.
Protection from "at-will" employment - USERRA prohibits the County from terminating an employee who is reemployed after a period of active duty longer than 30 days but less than 181 days except "for cause" within the first 180 days after his return. For those reemployed after a period of active duty longer than 180 days, the protection lasts for one full year. Under state law, the County may not fire an employee except "for cause" for a full year no matter how long the period of military service. Please make sure your Department Head understands this requirement before terminating an employee who has used Military Leave.
Immediate reinstatement of health benefits - Once reinstated, if the employer terminated health plan coverage because of the employee's military service, the employer must reinstate the coverage immediately, including any coverage for dependents. Contact HRRM and the Payroll Section of the Harris County Auditor's Office as soon as you find out that someone is going to return from Military Leave.
Seniority and other rights - Upon reemployment, an employee is entitled to "the seniority and other rights and benefits determined by seniority" that he had when he left plus the additional seniority and rights and benefits that such person would have attained if he had never left. That means he receives longevity pay as if he had never left and any other policy that is based on length of service. Thus, since County employees accrue vacation based on seniority, then when a reservist returns, we reinstate whatever balance he had when he left plus add to that balance any additional time he would have accrued while he was gone (up to the maximum).
The Family and Medical Leave Act policy also includes "seniority" provisions. Recall that employees are eligible for FMLA if they have worked a total of 12 months with a covered employer and have worked 1,250 hours in the 12-month period preceding the leave. Thus, the time an employee is on Military Leave counts for both prongs of the FMLA eligibility rule.
If your Department has a shift-bidding policy that takes into account seniority, then an employee's military leave counts towards his seniority when he returns and goes through the bid. If you have questions about shift-bidding or any other policy you might have that is based on seniority, please contact the Harris County Attorney's Office.
Retirement - When someone returns to employment after military leave protected under the Act, he gets TCDRS service credit for the months he was away. That is, he will get to count the months he was away toward determining eligibility for retirement. However, if the veteran wants the benefit of the county's matching deposit for those months, he must make the deposits he would have made while he was on active duty. The employee gets a limited amount of time to make those contributions. If you have an employee who is interested in this provision, please have the employee contact TCDRS directly or go to http://www.tcdrs.org/.
Protection from retaliation - USERRA prohibits discriminating against an employee based on his or her military service. This includes many employment decisions, including, but not limited to, promotions, demotions, job assignments, and work hours.