21.12 Leaves Required by Law or Negotiated Agreement

Attendance and Leave Manual

Absence With Pay (Part 21)

Section 21.12 - Leaves Required by Law or Negotiated Agreement

R-1 Purpose

The purpose of this Section is to confirm the obligation of the appointing authority to grant to employees who are subject to the Attendance Rules any leave of absence with or without pay otherwise required by law and not specifically covered by the Attendance Rules.

See related contract provisions C-1, C-2, C-3.

Eligibility

Eligibility for the various leaves required by law may be determined by reference to the appropriate statutory authorization. Such eligibility is not restricted to employees subject to the Attendance Rules.

Military Leave

Sections 242 and 243 of the Military Law provide for military leaves of absence for State employees. (A member of the Reserve Officers Training Corps [one who has not received his/her commission] is not eligible for leave with and/or without pay under Sections 242 or 243.)

Military Leave Without Pay

Any State employee entering active military duty is entitled, as a matter of right under the Military Law, to a leave of absence without pay from his/her position while engaged in, and while going to and from, military duty but not exceeding a cumulative total of four years for voluntary service. This is not a matter within the discretion of the appointing authority. The right applies to reservists, volunteers and draftees.

Temporary, provisional and seasonal employees are entitled to this leave of absence, but not beyond the time that their service would normally have been terminated for reasons other than their military duty. Their positions do not have to be held open for their return.
An exempt class employee is entitled to a leave only until his/her position is filled by permanent appointment. He/She may, however, at the discretion of the appointing authority, be continued on leave and his/her position filled on a temporary basis pending his/her return.

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Military Leave With Pay (Section 242 of the Military Law)

Only employees who are members of the National Guard or any reserve force who are called to active duty (including attendance at service schools and the initial period of three to six months of active duty required by the Reserve Forces Act) by a competent authority (with or without the consent of the employee) are entitled to military leave with full pay.
Military leave with full pay up to 30 calendar days (not work days) may be granted to such employees in any calendar year or in any one continuous period of absence. Not more than 30 calendar days may be granted for a single tour of duty.
A reservist may be called to active duty for a five-day period (Monday - Friday), released from such duty for the weekend, and immediately recalled for a second five-day period (Monday - Friday). Such reservist is on military leave with pay for only
ten calendar days. If normally required to work on weekends, he/she is expected to report for work during the intervening weekend unless his/her work schedule is changed.
A reservist holding a part-time, per diem or hourly position who is eligible for military leave with pay should receive the pay during the first 30 days of such leave that he/she otherwise would have received had he/she been present and worked his/her normal work hours during that 30-day period.
An employee is eligible for military leave with pay to attend weekly drills if these drills are held during the employee's regular working hours. Such leave is subject to the 30 calendar day limitation. The 30-day military leave with pay allowance must be used in full day units. Therefore, if an employee is absent on military leave with pay for only a few hours to attend a weekly drill, he/she loses a full day of his/her 30-day entitlement. Whenever practicable the appointing authority should consider revising the employee's shift or pass day schedule to avoid drills during work hours.
[See related contract provisions 20.1, C-6]

So called "administrative nights" (reserve member expected and encouraged to attend) are not deemed "ordered military duty" under Section 242 of the Military Law and an employee who absents himself/herself for this purpose is not entitled to military leave with pay. The appointing authority can distinguish a regular drill night absence from an...

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... "administrative night" absence by requiring the employee to submit a copy of his/her drill schedule.

After exhausting the leave with full pay such employees are entitled to leave without pay as described in "Military Leave Without Pay" above and may use vacation or personal leave credits during such period of leave subject to the prior approval of the appointing authority.

Conflict Between Work and Military Duty Required

An employee is entitled to military leave with or without pay if there is a conflict between his/her scheduled work period and the period of military duty, including necessary travel time. If there is such a conflict at any time during the calendar day he/she completes his/her military duty, the employee is not required to report to work upon completion of his/her military duty until the beginning of his/her next regularly scheduled work period the next calendar day. If there is no such conflict on the day he/she completes his/her military duty (including necessary travel time), he/she may be required to report for duty at the beginning of his/her next regularly scheduled work period that same day. If the military duty (including necessary travel time) begins during the employee's work period, he/she is entitled to military leave at such time as would allow him/her to report for military duty. He/She is not entitled to leave for his/her entire work shift except as he/she needs leave for his/her full shift to travel to the place of military duty.

Example: Employee works 11:00 p.m. to 7:00 a.m. Friday through Tuesday and is scheduled for weekend military drill from Friday at 6:00 p.m. to Sunday at 2:00 p.m. He/She needs two hours to get from place of employment to place of drill. -- Employee is entitled to military leave from 11:00 p.m. Friday to 7:00 a.m. on Sunday and is required to report for duty at 11:00 p.m. on Monday. (Since reporting for duty on Monday will cost the employee another day of his/her 30-day military leave with pay allowance, he/she may prefer to report for work at 11:00 p.m. Sunday.)

Example: Employee works 4:00 p.m. to 12:00 a.m. Friday through Tuesday and is scheduled for weekend military drill from Friday at 9:00 p.m. to Sunday at 2:00 p.m. He/She needs one hour to get from place of employment to place of drill. -- Employee...

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...is entitled to military leave from 8:00 p.m. Friday to 12:00 a.m. Sunday but is required to report for work at 4:00 p.m. on Sunday since there is no conflict between military duty (including travel time) and working period on Sunday.

Example: Employee works 4:00 p.m. to 12:00 a.m. Monday through Friday and is scheduled for military drill from 7:00 p.m. to 10:00 p.m. Wednesday evening. Employee needs 1 hour to get from place of employment to place of drill. -- Employee is entitled to military leave from 6:00 p.m. to the end of his/her work shift at 12:00 a.m. and is required to report for work at 4:00 p.m. Thursday.

Example: Employee works 8:30 a.m. to 5:00 p.m. Monday through Friday and is scheduled for military drill from 6:00 p.m. Friday to 6:00 p.m. Sunday. Employee needs 2 hours to get from place of employment to place of drill. -- Employee is entitled to military leave from 4:00 p.m. to 5:00 p.m. on Friday and is required to report for work at 8:30 a.m. on Monday.

Example: Employee works 12:00 a.m. to 8:00 a.m. Friday through Tuesday and is scheduled for military drill from Friday at 4:00 p.m. to Sunday at 4:00 p.m. Employee needs 3 hours to get from place of employment to place of drill. -- Employee is entitled to military leave from 12:00 a.m. Saturday to Sunday at 8:00 a.m. and is required to report for work at 12:00 a.m. on Monday.

Example: Employee works 8:30 a.m. to 5:00 p.m. Monday through Friday and is scheduled for military drill from 8:00 p.m. Friday to 6:00 p.m. Sunday. Employee needs 2 hours to get from place of employment to place of drill. Since there is no conflict between the employee's scheduled work period and the period of military drill, including necessary travel time, there is no need for nor entitlement to military leave with or without pay.

Example: Employee works 8:30 a.m. to 5:00 p.m. Monday through Friday and is scheduled for an extended period of military reserve duty from 1:00 p.m. Saturday to 11:00 a.m. on the third succeeding Sunday (approximately two weeks), including necessary travel time. Beginning with Monday at 8:30 a.m. when the conflict with his/her scheduled work period begins, the employee remains on military leave until completion of his/her military duty at 11:00 a.m. on the third succeeding Sunday--a...

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...total of 14 calendar days--and reports for work at 8:30 a.m. the following day, Monday.

In some cases, an employee may be able to work his/her normal shift, have time to travel to and from his/her place of military drill without having a conflict between his/her scheduled work period and the period of drill (e.g., work period from 11:00 p.m. to 7:00 a.m. and military drill, including travel time, from 8:00 a.m. to 10:00 p.m.), not be entitled to any military leave and be required to report for work at the beginning of his/her next regularly scheduled work period. However, where denial of any military leave in such cases would constitute a severe hardship for the employee or would not be acceptable to the employer because of the effect on the employee's ability to perform his/her normal and regular duties, a period of military leave may be approved with the understanding that, where military leave with pay is involved, an appropriate charge (in full day units) will be made against the employee's annual allowance of 30 calendar days.

Leave Credits

Credits earned and unused at the time of entry into military service are restored upon return to State service provided payment has not been made for such credits.

An employee on military leave with full pay, who is covered by the Attendance Rules, earns and accrues credits in accordance with the Attendance Rules.

An employee on military leave without pay does not earn credits.
For information on vacation "bonus" days and military leave, see "Military Leave of Absence" under Section 21.2, "Vacation," of this Manual.
For the effect of military leave on the anniversary date for personal leave, see "Crediting of Personal Leave" under Section 21.6, "Personal Leave," of this Manual.
See Section 23.2, "Payments For Accruals Upon Entry Into Armed Forces," of this Manual.

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Leave for Veterans on Memorial Day, Independence Day and Veterans' Day

Section 63 of the Public Officers Law provides that certain veterans (as defined by that Section) shall be granted leave with pay without charge to credits on Memorial Day and Veterans' Day.
Section 249 of the Military Law provides for leave with pay without charge to credits on July 4th (Independence Day) for employees who have served as members of the National Guard, Naval Militia or the Reserve Corps during peacetime and who have been honorably discharged therefrom.

State employees are not usually affected by the provisions of these laws because these days are holidays provided by the Attendance Rules, except when they fall on a Saturday. (See Section 21.1, "Sundays and Holidays," of this Manual.) In the event one of these days does fall on a Saturday, State employees are again not normally affected by the provisions of these laws because most of them do not have work schedules which include Saturdays.

[See related contract provisions 21.1 C-1, C-11]

When Memorial Day, Independence Day or Veterans' Day falls on a Saturday and is not observed as a holiday under the Attendance Rules, an eligible veteran or former reservist who works on that day is entitled to a day off in lieu of a holiday as though he/she had worked on a day observed as a holiday under the Rules. If he/she is absent from work on vacation, sick leave, personal leave or against overtime credits, his/her absence should be charged as a holiday and not against his/her credits.

[See related contract provisions 21.1 C-1, C-11]

It is not necessary that eligible veterans be covered by the Attendance Rules to be entitled to the provisions of Section 63 of the Public Officers Law or Section 249 of the Military Law.

Leave for War Veterans to Continue Study

Section 246 of the Military Law provides that certain war veterans, as defined by that Section, shall be granted a leave of absence without pay to continue the pursuit of studies or to take a refresher or retraining course for the period of such a course of study, not to exceed four years.

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Time Off to Vote (Section 226[3-110]of the Election Law)

Pursuant to Section ~~226~~[3-110]of the Election Law, all employees who are registered voters and who do not have sufficient time to vote outside of working hours (see below) may take off that amount of time which, when added to the voting time available outside working hours, will enable them to vote. Up to two hours of such leave shall be granted with pay without charge to any leave credits. Additional time off for employees who are covered by the Attendance Rules should be charged to vacation, overtime compensatory time credits or personal leave as approved by the appointing authority.
Four consecutive hours either between the opening of the polls and the beginning of the employee's work shift or between the end of his/her work shift and the closing of the polls is considered sufficient time to vote.
Time off to vote shall be taken at the beginning or end of the work shift, as designated by the appointing authority, unless the appointing authority and the employee mutually agree on another time.
Time off to vote applies to general elections, special elections called by the Governor, primary elections, town and village elections, but not to school elections.
If an employee requires time off to vote, he/she must notify the appointing authority not more than ten nor fewer than two working days before the day of the election that he/she requires such time off to vote in accordance with the provisions of Section ~~226~~[3-110]of the Election Law.
Not fewer than ten working days before every election, the appointing authority must keep posted conspicuously in the place of work, where it can be seen as employees come or go to that place of work, a notice setting forth the provisions of Section ~~226~~[3-110]of the Election Law.
See "Election Day" under Section 21.1, "Sundays and Holidays," of this Manual.

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Sick Leave for Per Diem Employees

Section 18(c) of the Labor Law provides that per diem employees in the competitive, noncompetitive or labor class, who are not subject to the Attendance Rules, may, at the discretion of the appointing authority, be granted sick leave with pay for not more than 30 days in any year.

Vacation for All Employees

Section 71 of the Public Officers Law authorizes an appointing authority to grant to any employee, who has been employed at least one year and who is not subject to the Attendance Rules, a vacation with pay of not fewer than two weeks in each year and such further time as the duties and length of service and other circumstances may warrant.

Revision History	TM-1 - 1/3/87
All pages	No substantive changes

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