The reserve forces of the United States have two components, the Reserve and the National Guard. There are some differences in the treatment of the components so you need to be aware in which component your employee serves.
- An employee who is in the National Guard and is called to active duty by the Governor is entitled to paid emergency leave for the time in which that employee is on active duty. This time is not limited and does not count against military leave or annual leave.
- All military leave, other than active duty in the National Guard as called by the Governor, is subject to a maximum of 15 days leave per federal fiscal year.
Source: State Auditor' s Office Leave Interpretation Letter 98-06 and Texas Government Code 431.0825
The following information pertains to all employees in the reserve forces, regardless of whether they are National Guard or Reserve.
Notification or Request for Military Leave
The law requires all employees to provide their employers with advance notice of military service. Notice may be either written or oral. It may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving. However no notice is required if:
- military necessity prevents the giving of notice; or
- the giving of notice is otherwise impossible or unreasonable.
The Department of Labor has published the Non-Technical Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA). Page 15 of the guide contains a checklist of obligations that service members have with their employer. Pages 16 and 17 of the guide contain a checklist of employer obligations with respect to employees who are service members. Employers should insure their policy and procedures incorporate the issues within these two checklists.
A person who is an officer or employee of the state, a municipality, a
county, or another political subdivision of the state is entitled to 15 days of
military leave for each federal fiscal year. During a military leave of absence
the person may not be subjected to loss of time, efficiency rating, vacation
time, or salary.
Source: Texas Government Code 431.005
A state employee is entitled to 15 days of paid military leave regardless of
whether or not the employee is currently in a leave without pay status.
Source: State Auditor' s Office Leave Interpretation Letter 98-03
After exhausting the 15 days of military leave an employee may use accrued
vacation leave to the extent available or be placed in a military leave without
pay status (or a combination of the two) for the remainder of the active duty
period.
Source: State Auditor's Office Leave Interpretation Letter 79-01
All employees should be placed in a military leave status, paid leave status or leave without pay status, for the duration of their active duty period and not terminated. A termination has the potential to cause a loss in longevity service credit and health and life insurance. A termination may be a violation of the Federal USERRA law and State Government Code 431.006.
Use of compensatory time in conjunction with using military leave: By
limiting agencies' discretion to pay employees for overtime to situations in
which granting time off is impractical, the Legislature indicated its preference
that agencies compensate FLSA non-exempt employees with compensatory time. The
Legislature further gave agencies the choice of allowing or requiring the
employee to use the compensatory time. Reading this language in light of the
Supreme Court decision and the Fifth Circuit Court of Appeals decision, it is
our interpretation that agencies may require non-exempt employees who
have requested leave to exhaust FLSA compensatory time balances before
using annual leave.
Source: State Auditor's Office Technical Update
Letter 01-01 If an employee of a state agency (defined by Texas Government
Code Section 658.001) submits a written request to use accrued state compensatory
time not later than the 90th day before the date on which the accrued compensatory
time will lapse, the employer shall approve in writing the employee's request
or provide the employee with an alternate date on which the employee may use
the compensatory time. The employing agency is encouraged to reasonably accommodate
the employee's use of the accrued compensatory time.
Source: Texas Government
Code 659.022
Re-employment: A public employee who leaves a state position or a position with a local governmental entity to enter active military service is entitled to be re-employed:
Source: Texas Government Code 613.002
Certain police officers and firefighters have the opportunity to compete in a promotional exam even if they are deployed for active duty while serving in one of the armed forces of the United States. Additionally, if an employee is recalled on active military duty for not more than 60 months, the employee is entitled to have time spent on active military duty considered as duty in the respective fire or police department.
Source: http://www.capitol.state.tx.us/statutes/lg.toc.htm
Unless the employee has submitted his or her resignation, he or she is still
considered to be a state employee while on leave without pay as a member of the
Reserve Branch of the military.
Source: State Auditor's Office Leave
Interpretation Letter 98-03
"An employee who is restored to state employment following military service
is generally to be considered as having been on furlough or leave of absence,
and as such, is entitled to all benefits to which an employee returning from a
non-military leave of absence would be entitled, including the crediting of sick
leave accrued prior to such military leave."
Source: Texas Attorney General
Opinion MW-109
The Comptroller' s Payroll Policies and Procedures, Chapter 3, page 43 states; "if an individual left a position that accrued lifetime service credit to serve in the military and if the individual was re-employed with the state after completing that service in accordance with any applicable federal or state veterans' reemployment law, then the individual accrued lifetime service credit during that service". This applies to both vacation accruals and longevity pay.
In any given month in which an employee is on military LWOP for
either less than the full calendar month or a full calendar
month, that month shall be counted in the calculation of total state service,
and shall be applied toward satisfying the six continuous months of service
requirement for taking vacation leave.
Source: State Auditor's Office Leave
Interpretation Letter 89-02
"Holidays, days on sick leave, weekend emergency leaves and other approved
leaves (military leave) with or without pay, do not break the
continuity of service." (Emphasis Added).
Source: Texas Attorney
General Opinion H-105
ERS Benefit Coverage While on Leave Without Pay
During leave without pay for insurance purposes an employee must pay their total health, dental and other insurance premiums each month. The employee must pay the portion that is usually paid by the state, as well as any out-of-pocket expenses. If the total monthly premium is not paid when due, all coverages will be cancelled.
An employee may work and/or receive paid leave in the same month in which their unpaid leave (leave without pay) begins. They are entitled to the state contribution during this month and any SKIP supplement they receive will continue; however, the employee must still pay their out-of-pocket premiums. If their paycheck is insufficient to cover the out-of-pocket premiums, they must submit their out-of-pocket premiums to their benefits coordinator by personal check, cashier' s check, or money order made payable to the Employees Group Insurance Fund. If out-of-pocket premiums are not paid, coverages will be cancelled.
An employee may continue coverage while in a leave without pay status for 12 months. After they have been on leave without pay for the maximum time allowed and employment and coverage are terminated, coverage may be continued through COBRA.
Employees should contact their benefits coordinator for complete information about their rights and responsibilities for retaining insurance coverage while on leave without pay and reinstating coverages when they return to work.
Continuing Coverage Under COBRA
When an employee terminates employment or reaches the maximum period allowed for continuing coverage while in a leave-without-pay status, they may continue health and dental coverage for up to 18 months, in accordance with federal COBRA provisions.
When their dependents lose coverage because they are no longer eligible as an employee's dependent, they may be eligible to continue health and dental coverage for up to 36 months under federal COBRA law. The agency's benefits coordinator must be notified within 60 days after a dependent. s loss of eligibility. Employees should consult their benefits coordinator for complete information about their dependent. s rights and responsibilities for continuing insurance coverage under COBRA.
Additional Information:
Technical Assistance guide for the Uniformed Services Employment and Reemployment Act (USERRA) can be found at: http://www.dol.gov/elaws/userra0.htm The Uniformed Services Employment and Reemployment Rights Act (USERRA) Advisor helps Veterans understand employee eligibility and job entitlements, employer obligations, benefits and remedies under the Act. This Advisor was developed by the Veterans' Employment and Training Service.
Department of Labor Veteran's Employment and Training Service staff can be reached at the following locations:
Austin: John McKinny 512-463-2815 or mckinny-john@dol.gov
Longview: Albert Arredondo 903-758-1783 ext. 211 or arredondo-albert@dol.gov
San Antonio: Armand Escalera 210-684-1051 ext. 1077 or escalera-armand@dol.gov
Lubbock: Ronny Hayes 806-765-5038 ext. 212 or hayes-ronny@dol.gov
Ft. Worth: Robert Marterella 817-335-6111 ext. 1101 or marterella-robert@dol.gov
Houston: Alberto Navarro 713-767-2022 or navarro-alberto@dol.gov
The Employer Support of the Guard and Reserve (ESGR) Ombudsmen Services Program was established in 1974 to assist in compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Ombudsmen Services Program provides information, informal mediation, and referral service to resolve employer conflicts. ESGR is not an enforcement agency and does not offer legal counsel or advice. More than 95 percent of all such requests for assistance are resolved in this informal process, without requiring referral to the Department of Labor for formal investigation.
Information on the Soldier's and Sailor's Civil Relief Act of 1940 (SSCRA)
The Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA) is a federal law that gives all military members some important rights as they enter active duty. It covers such issues as rental agreements, security deposits, prepaid rent, eviction, installment contracts, credit card interest rates, mortgage interest rates, mortgage foreclosure, civil judicial proceedings, and income tax payments.