Advisory Memorandum No. 2007-01

Section 21.12 Leaves Required by Law or Negotiated Agreement - January 2007

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TO: Manual Recipients
FROM: Terry Jordan, Director of Staffing Services
SUBJECT: Memoranda of Understanding on Extension of Special Military Benefits and
New Post-Discharge Benefits

The Governor's Office of Employee Relations has signed Memoranda of Understanding with CSEA, PEF, NYSCOPBA, Council 82, DC-37, and UUP, extending current special military benefits for service in connection with the war on terror through December 31, 2007. The MOUs also provide certain benefits in connection with return from military duty for duty related to the war on terror that exceeds 180 days' duration. The same benefits provided in these MOUs are extended to M/C employees.

Provisions of the MOUs are not grievable.

The existing special military benefits extended under these MOUs are administered in accordance with previously issued memoranda:

GIB 01-04	Special Military Benefits for State Employees Activated in Connection with the Events of September 11, 2001
AM 2001-06	Special Military Leave for Employees Activated in Connection with the Events of September 11, 2001
AM 2002-01	Frequently Asked Questions about Special Military Leave in Connection with the Events of September 11th
AM 2002-03	Training Leave at Reduced Pay for Military Duty Not Related to the Events of September 11, 2001 and Extension of Special Military Leave in Connection With the Events of September 11th
AM 2004-01	Clarification of Special Military Leave Benefits
AM 2005-01	Extension of Military Leave Benefits Related to the War on Terror through December 31, 2006

The remainder of this memo describes proper administration of the new provisions on post-discharge benefits.

Questions concerning these benefits should be directed to the Attendance and Leave Unit of this Department at (518) 457-2295.

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Eligibility
Section 243 of the New York State Military Law and the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) entitle reservists and National Guard members, under certain circumstances, to up to 90 calendar days from the date of discharge from active military duty to return to work. Specifically, reservists and National Guard members who have been absent from work to perform ordered military duty for more than 180 consecutive calendar days are entitled to up to 90 calendar days from the date of discharge from active military duty to return to work.

In calculating the 90-day period, agencies should begin counting with the day following the date of discharge from active military duty. Issues of verification of date of discharge should be referred to the Attendance and Leave Unit of this Department.

The new MOUs address returning service members' entitlement to charge appropriate leave credits (credits other than sick leave) and to be granted certain military benefits if ordered to perform military duty during this 90-day post-discharge period.

The new MOUs apply only to the 90-day post-discharge period which commences following discharge from active duty. They do not apply to employees on terminal leave from active military duty who are still under military orders and have not yet been officially discharged from such duty, although they may not actually be performing military duty.

In order to be eligible for the new benefits provided under these MOUs, an employee must:

• Be a reservist or National Guard member;
• Have performed ordered active military duty in connection with the war on terror for more than 180 consecutive calendar days;
• Be discharged from such active duty between January 1, 2007 and December 31, 2007; and
• Not have been separated from service with a disqualifying discharge.

Work Schedule Definition
For purposes of administering the benefits in the new MOUs, the employee's work schedule is the last work schedule the employee had prior to the commencement of the period of qualifying active military duty.

Entitlement to Charge Appropriate Leave Credits During Post-Discharge Period
During the 90-day post-discharge period, eligible employees are entitled, under the new MOUs, to elect to charge appropriate leave credits (credits other than sick leave). Employees who elect to charge leave credits receive salary and earn leave credits as any other employee charging credits.

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Retroactivity of Request to Charge Credits
Under USERRA and Section 243, employees may make contact with their agencies at any point during the 90-day post-discharge period. At the point the employee first contacts the agency, the agency must make the employee aware of the option to charge credits. The decision to charge credits may be made at any time during the 90-day post-discharge period but no later than the date of return to work. Employees who elect to charge credits may do so retroactive to the date following the date of discharge from the covered active duty.

Work Schedule
Credits are charged against the employee's work schedule as described above.

Employees Who Elect Not to Charge Credits
Employees who elect not to charge leave credits during the 90-day post-discharge period are treated as employees on military leave without pay. They do not earn biweekly leave credits or observe holidays, including floating holidays. The personal leave anniversary date and IPP grant dates change to date of return to pay status if they fall during a period of leave without pay and the employee is credited on the new date. The vacation anniversary date does not change and, for leave without pay of less than six months, the employee is credited with vacation bonus days upon return to pay status.

Eligibility For Military Leave with Pay During Post-Discharge Period
The new MOUs also address the situation where a reservist or National Guard member may be ordered to perform military duty during the 90-day post-discharge period. That duty may fall within the 90-day post-discharge period or may begin during that post-discharge period and continue beyond it. For example, an employee may be required to perform weekend drill duty or to fulfill a summer training requirement which is not related to the war on terror. Or, the employee may be ordered to perform a period of active duty which may or may not be related to the war on terror.

The post-discharge benefits described in the new MOUs provide certain benefits to employees called to ordered military duty during the 90-day post-discharge period, regardless of whether such duty is related to the war on terror.

Specifically, employees ordered to perform military duty during the 90-day post-discharge period are entitled to military leave with pay under section 242 of the New York State Military Law and to the special military leave benefits negotiated with employee unions, to the extent that such benefits are applicable. Employees are entitled to such military benefits regardless of whether they exercise their option to charge leave credits or to be placed on leave without pay during the 90-day post-discharge period.

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Retroactivity
If eligible employees wish to receive such benefits, they must comply with normal requirements to produce military orders and leave and earnings statements. However, under USERRA and Section 243, employees may make contact with their agencies at any point during the 90-day post-discharge period. At the point the employee first contacts the agency, the agency must make the employee aware of the option to submit military orders to establish eligibility for Section 242 benefits and/or special military benefits.

If an employee wishes to avail himself/herself of this option, the employee may make that request at any point during the 90-day post-discharge period but no later than the date of return to work. Employees who elect to use available military benefits during this period may do so retroactive to the date following the date of discharge from the covered active duty. Supporting documentation in the form of military orders and leave and earning statements is required for any period of paid military leave.

Employees ordered to military duty within the 90-day post-discharge period are not required to submit military orders unless such orders will continue beyond the end of the 90-day period. In such cases, the employee retains the option not to be placed on military leave until the 90-day period has ended and the employee would have reported to work except for the military orders. Supporting documentation in the form of military orders and leave and earning statements is required for any period of paid military leave.

Work Schedule
Paid military leave under Section 242 and special military benefits negotiated with employee unions, and extended to M/C employees, are available to the extent that there is a conflict with the employee's work schedule as described above.

Section 242 Benefits During Post-Discharge Period
Paid leave under section 242 is available to the extent that military orders conflict with the employee's schedule as defined above, provided the employee has not already exhausted his current calendar year Section 242 entitlement. For example, an employee discharged in March 2007 receives orders for a weekend drill in April 2007 that coincides with his scheduled workdays. Provided the employee has available Section 242 leave in calendar year 2007, the employee is entitled to be placed on Section 242 leave for that drill even though it falls during the 90-day post-discharge leave period.

In order to receive this benefit, employees must request it and must comply with requirements to submit military orders and leave and earning statements.

Special Military Benefits During Post-Discharge Period
Special military benefits negotiated with employee unions, and extended to M/C employees, are available to the extent that the employee meets the specific eligibility requirements for such...

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...benefits. For example, an employee discharged in June 2007 from active duty related to the war on terror, who has no remaining Section 242 benefit available in 2007 and who receives orders for two weeks of training duty in July 2007 is eligible for training leave at reduced pay pursuant to negotiated agreements with employee unions, even though such orders are issued during the 90-day post-discharge leave period.

In order to receive these benefits, employees must make a request and must comply with requirements to submit military orders and leave and earning statements.

Calculation of 90-Day Post-Discharge Period
The 90-day post-discharge period is calculated starting with the day following the date of discharge from the qualifying military service described under Eligibility above. The 90-day count continues without interruption or recalculation even if the employee is placed on paid military leave during this period.

Upon expiration of such orders the employee completes the remainder of the 90-day period unless the employee elects to return to work sooner. For example, an employee who elects not to return to work for 60 days following discharge receives military orders for 8 days after 30 of those 60 days have elapsed. The employee performs the military duty during days 31 through 38 and continues to be absent for another 22 days (60 days from date of discharge).

If the military orders begin during the 90-day post-discharge period and end after the expiration of that period, the applicable time frames to return to work following release from military duty established under USERRA apply.

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