Policy Number: 4.50 - Military Leave
Application: Classified employees.
Permits employees to take military leave, with or without pay, for active duty in the armed services of the United States, and permits employees who are former and inactive members of the armed services, or current members of the reserve forces of any of the United States' armed services, or of the Commonwealth's militia, or the National Defense Executive Reserve to take military leave in accordance with federal and state law. Provides continued salary for employees in the Commonwealth’s Militia called up by the Governor to respond to natural or man-made disasters.
Active Military Supplement
|Amount paid by state to classified employees who are reservists or in the National Guard on Leave Without Pay–Military whose gross military salary plus allowances is less than their base state salary. These employees will receive payment equal to the difference between the two amounts. Employees remaining on the state payroll by using any paid leave are not eligible for this supplement. Authorized by Executive Order 44-2003 and valid unless rescinded.|
|Active Military Duty||
Federally funded military duty as (a) a member of the armed forces of the United States on active duty pursuant to Title 10 of the United States Code, or (b) a member of the Virginia National Guard on active duty pursuant to either Title 10 or Title 32 of the United States Code.
State-funded military duty pursuant to a call-up of the militia, including the National Guard, by the Governor of Virginia as provided by Va. Code §§ 44-75.1 and 44-78.1
|Commonwealth’s Militia||The militia of the Commonwealth of Virginia consists of the National Guard, which includes the Army National Guard and the Air National Guard; the Virginia State Defense Force; and the naval militia.|
|Federal Fiscal Year||October 1 - September 30.|
|Military Bank Leave||Leave time that full-time employees who are members of the military reserves (MR) or National Guard (NG) may choose to bank for use during active military duty in order to remain in full pay status. The source of this leave time is annual leave hours above the carryover maximum.|
|Military Leave With Pay||A period of approved absence for military duty during which full state pay and benefits continue. Includes paid time granted by statute and time during which an employee has elected to apply his or her accrued leave as permitted by policy.|
|Military Leave Without Pay||A period of approved absence during which employees' regular pay is discontinued by the state while they are engaged in active military duty or state- or federally-funded military training duty. (Also LWOP-military.)|
|Military Training||Federally-funded training duty for members of any reserve component of the armed forces of the United States as listed above, and state-funded training duty for members of the Common-wealth’s Militia and National Defense Executive Reserve.|
|National Defense Executive Reserve||Composed of persons of recognized expertise from various segments of the private sector and from government (except full-time federal employees) for training for employment in executive positions in the Federal Government in the event of an emergency that requires such employment. (50 United States Code, Appendix Section 2160).|
The Uniformed Services Employment and Re-employment Rights Act of 1994. Under USERRA, employees who leave work to serve in the armed forces hold certain reemployment rights as long as they comply with notification and other requirements.NOTE: State employees (for example, hourly, faculty, “at-will”) not covered by this policy may have reinstatement rights under USERRA.
|ELIGIBILITY FOR MILITARY LEAVE|
An employee is eligible for Military Leave when, during state employment, he or she
|MILITARY LEAVE WITH PAY|
|15 Workdays/Federal Fiscal Year||
The employees listed below shall be granted up to 15 workdays of paid military leave. A workday shall mean 1/260 of the total working hours an employee is scheduled to work during the entire federal fiscal year.
|Access To Military Leave
With Pay (15 Days)
An employee on LWOP, including leave without pay-military, does not have access to the 15 days of paid military leave available to employees who go onto military leave from an active working status. Access is restored when the employee returns from LWOP status.
Employees are paid up to 8 hours per federal fiscal year for pre-induction and other physical examinations required for military service in addition to the 120 hours discussed above.NOTE: The leave record should show "military leave with pay-physical." Because PMIS will not accept an amount that totals more than 120 hours, this may need to be entered manually.
|Military Leave For Emergency Service||The Governor of Virginia may call the Commonwealth’s Militia to respond to natural or man-made disasters in Virginia or in another state. (See Va. Code §§ 44-75.1 and 44-78.1.) Employees called to such emergency-response military duty are on military leave with pay. This time is separate from and in addition to the 15 days of paid military leave per federal fiscal year available for military training or active military duty, as detailed above.|
|Effects of Remaining on Paid Leave||Employees’ benefits are not affected during military leave with pay. Employees continue to accrue annual leave and traditional sick leave for 90 calendar days. VSDP leave is credited if the employee is on paid leave on January 10, and VSDP balances are retained during leave with pay; unused leave (sick, family and personal) is lost on January 9. Retirement contributions continue. The state contribution to health insurance premiums continues, and life insurance coverage is not changed.|
|options for using accrued Leave at Beginning of Military Leave|
|In addition to the 15 days for training or active duty plus 8 hours for a physical examination, employees on military leave may remain in paid status by using all or part of their accrued leave balances (except sick leave).|
|Use of Leave – General||
In the provisions below relating to annual, compensatory, and overtime leave, the employee who chooses to be paid for some or all of his or her accrued balances may elect to receive payment either (a) in a lump sum or (b) on the agency’s regular payroll schedule. The employee who chooses to use some or all of his or her accrued balances to remain in active status must use the leave consecutively. Sporadic use of paid leave is not permitted.
The employee may elect during military leave to receive a lump sum payment for any retained leave balances that qualify to be paid.
At the employee’s option, all or part of annual leave balances held at the beginning of active military duty may be
|Military Bank Leave||
A full-time state employee who is a member of the organized reserve forces of any of the armed services of the United States or of the Virginia National Guard may carry forward all excess accrued annual leave hours to be retained as Military Bank leave (MB). When the yearly carry-over adjustments to annual leave are made on January 10 of each year, the amount of leave in excess of the allowable carry-over amount shall be added to the employee's MB category if that employee has an MR (Military Reserve) or NG (National Guard) designation in PMIS and has authorized accrual of MB leave through his or her agency.
Hours over the normal carryover limits retained as Military Bank leave may be used only during active military duty as provided by Va. Code § 2.2-2903.1. Military Bank leave may not be paid out or credited in any other form to the employee. It is either used during active military duty or it lapses upon separation, retirement, or death. See Policy 4.20, Annual Leave.
Using Military Bank Leave
An eligible full-time employee whose excess annual leave has been retained as Military Bank leave may apply any such banked leave at the beginning of active military duty. Employees beginning active military duty should indicate their request to use Military Bank leave, and other accrued leave, on their Military Leave Worksheet (see attachment A).
Military Bank leave may be applied to the period of absence due to active military duty in the same way that other accrued leave is applied. Regular payroll deductions continue. Sporadic use of MB leave is not permitted.
An employee on active military duty may choose to retain all or part of his or her Military Bank leave. The balance will remain available for use only during future periods of active military duty.
At the employee’s option, all or part of compensatory leave balances held at the beginning of active military duty may be
At the employee’s option, all or part of overtime leave balances held at the beginning of active military duty may be
Overtime leave balances are paid at the employee’s regular rate of pay or the average rate received by the employee during the last three years of employment, whichever is higher.
Sick Leave – Traditional
Employees participating in the Traditional Sick Leave program under Policy No. 4.55, Traditional Sick Leave, have these options for their accrued sick leave balances:
|Leave Awarded by the Virginia Sickness and Disability Program (VSDP)||
At the employee’s option, family and personal leave balances under VSDP may be applied to the period of absence due to military service. Family and personal leave balances not used will lapse on January 9 and will be credited in accordance with VSDP policy when the employee returns to state service.
Any unused balance of VSDP sick leave held at the beginning of LWOP-military will be retained pending the employee’s return. If the employee remains on LWOP at the end of the leave year (January 9), these balances will expire. When the employee returns to state service, new balances are provided in accordance with VSDP policy.
|MILITARY LEAVE WITHOUT PAY|
|Employees shall be granted military leave without pay for the duty indicated in their military orders that is not covered by military leave with pay or by the employee’s use of his or her annual, military bank, compensatory, overtime, or family and personal leave balances. State service continues to accumulate while an employee is on Military Leave.|
|Active Military Supplement||Pursuant to Executive Order 44 (2003), classified employees called to active duty military service in the Armed Forces of the United States and on LWOP-military whose gross military salary plus allowances is less than their base state salary are eligible to receive the Active Military Supplement. Employees need to provide to their agency Human Resource office a military Leave and Earnings Statement (LES) when they begin active duty and when any change in their salary or allowances occurs so that their agencies can confirm their eligibility for the supplement and can calculate the amount due.|
|Exempt Employees||FLSA exempt employees' salaries may not be reduced as a result of a partial workweek absence on military leave. However, agencies may count employees' military pay for the week toward their salaries. Thus, if an employee's military pay is equal to or higher than the employee's weekly salary, the agency is not required to pay the employee any salary for that week. If an employee's military pay is less than his or her salary, but the military pay is supplemented in accordance with Executive Order 44 (2003), then the agency's obligation to the employee for the partial workweek will have been met.|
|Layoff||Employees on Leave Without Pay-layoff are considered to be on leave from state service. Thus, if they are called to active military duty during layoff, they will be placed on Military Leave Without Pay. Employees will retain layoff benefits until released from active military duty. At that point, they will return to LWOP- Layoff status and continue for the remaining period of layoff for which the employee was eligible prior to LWOP-military.|
|Temporary Work Force Reduction||An employee who remains on the payroll by using accrued leave while on active military duty may be subject to Temporary Work Force Reduction (TWFR) if his or her position would otherwise have been affected by the reduction. Unpaid leave will be substituted for paid leave for the time affected by the TWFR. An employee on Military Leave Without Pay is generally not subject to TWFR.|
|BENEFITS DURING MILITARY LWOP|
|Annual Leave||Employees do not accrue annual leave when they are in a leave without pay status.|
|Sick Leave– Traditional||Employees will not accrue traditional sick leave when in leave without pay status. See Policy 4.55, Traditional Sick Leave.|
|VSDP Leave||Unused balances of VSDP sick leave and of family and personal leave lapse if the employee remains on military leave on January 9. New balances are credited in accordance with VSDP policy when the employee returns to state service.|
|Health And Related Benefits During LWOP Military||
Coverage will continue through the end of the month in which the leave without pay begins. If the employee returns from leave the following month, and works at least one-half of the workdays in the month, coverage will not lapse.
Coverage for Active Military Duty/LWOP for more than 14 days – Employees called to active military duty whose active state employee benefits will lapse due to being placed on military leave without pay will be offered benefits for themselves and their covered dependents in Extended Coverage for up to 24 months. These employees and dependents are eligible for federal health benefits. However, they will be allowed to continue health benefits with the State Program and upon election of Extended Coverage will receive the State contribution for up to 24 months without an administrative fee. Beyond the 24-month period, conversion to non-group coverage is available.
All health care premiums are deducted on a pre-tax basis. Premiums for the month in which leave without pay begins may be collected either by a lump sum pre-tax payroll deduction or on an after-tax basis by personal check.Flexible Reimbursement Account
Medical Reimbursement Accounts - Participating employees who are called to active duty may continue participation through the end of the plan year. The participant's elected contributions for the period of leave must be collected either by a lump sum pre-tax payroll deduction, or monthly on an after-tax basis by personal check.
Alternatively, within 31 days of taking an unpaid leave of absence, the employee may elect to discontinue participation in the medical reimbursement account. Coverage will cease on the first day of the month after the employee begins an unpaid military leave of absence. Elected contributions for the final month of coverage may be collected on a pre-tax basis by lump sum deduction or on an after-tax basis by personal check. The employee can be reimbursed for expenses incurred through the end of the final month of coverage.Dependent Care Accounts - Coverage will cease on the first day of the month after the employee begins an unpaid military leave of absence.
|Life Insurance||The state shall continue to provide basic group life insurance coverage at no cost to the employee for a maximum of 24 months from the date military leave without pay begins. After 24 months, an employee may convert to an individual life insurance policy and pay the entire premium.|
|Holidays||Employees will not be granted or paid compensatory leave for holidays occurring during periods of military leave without pay|
|Retirement Contributions||If employees earn any pay in the months in which military leave without pay begins or ends, agencies shall make retirement contributions based on the employees' full monthly base salaries. Contributions will be discontinued for the remaining time employees are on military leave without pay.|
|REINSTATEMENT TO STATE SERVICE|
|Eligibility for Reinstatement||Reemployment rights extend to persons who have been absent from a position of employment because of performing duty in the uniformed services. The cumulative length of service that causes a person’s absences from a position may not exceed five years.|
USERRA lists eight categories of service that are exempt from the five-year limitation. These include:
|Duration of Eligibility for Reinstatement||
Employees remain eligible for reinstatement to previous positions for a cumulative period of up to five years of active duty. (Note the eight categories of service exempt from the five-year limitation listed above.) That eligibility may be extended for up to two additional years only when:
|GUIDELINES FOR REINSTATEMENT|
|Policies and procedures for reinstatement are consistent with the Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA), except where state law confers a greater benefit. Veterans must be placed in positions they would have attained if they had remained continuously employed.|
|Requests for Reinstatement||
Requests for reinstatement must be made to the agency either orally or in writing. They should state that the person is seeking reinstatement to his or her former employment upon return from military service.
These requests should include certificates or release orders that confirm satisfactory completion of military service and provide the date of discharge.
NOTE: The state is not obligated to reinstate an employee who has not satisfactorily completed military service or training. Eligibility for reinstatement must be evaluated on an individual basis, taking into consideration the employee's military record and work history with the state. Additionally, an employee may not return to his or her classified position prior to the date of discharge shown on the official discharge documents.
|Time Frames for Requests for Reinstatement||
Employees must request reinstatement within 90 calendar days of the day after release from active duty. Employees remain on Military LWOP during the permitted period of time between discharge from active military duty and reinstatement to active state employment.
Disability incurred or aggravated. The reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing because of a disability incurred or aggravated during the period of military service. This period will be extended by the minimum time required to accommodate a circumstance beyond an individual’s control that would make reporting within the two-year period impossible or unreasonable.
|Effective Date of Reinstatement||Employees are to be reinstated within a reasonable period of time after notification to the employer, normally considered to be within 5 to 10 workdays. However, agency circumstances may require longer periods.|
|Based On "Escalator Principle"||Employees are qualified for pre-service positions or for positions to which they are entitled under the "escalator principle." That is, they will step back on the seniority escalator at the salary they would have held had they kept their positions continuously during military service. The purpose of the reemployment statute is to place veterans in the positions they would have attained if they had remained continuously employed, not a better position or a worse position.|
|Same Or Comparable Position||
Employees will be reinstated to their previous positions or to comparable positions in terms of pay, status, and location when they meet the minimum qualifications for the position. If employees no longer meet the minimum qualifications of their former positions because of changes in job duties, they must meet the changed requirements within a reasonable time after re employment, or be offered positions requiring skills comparable to those required in former jobs with like seniority, status, pay, and location.
Before being placed in other positions, employees should be offered training to increase their ability to perform the jobs, if such training would have been available to them if no military service had occurred.
|Change In Agency Business Needs||
When an agency's circumstances have changed, thereby making it impossible or unreasonable to reinstate the employee, it may take one of the following actions.
Comparable position available – If employees' formerly-held positions have been abolished, they shall be placed in positions comparable in Pay Band and pay to those previously held.
NOTE: If the nature and level of duties of a current position are substantially similar to those of the returning employee’s pre-service position, a change of title does not justify the conclusion that the pre-service position has been abolished.
Comparable position not available – If comparable positions are not available, employees shall be considered affected by a reduction in force, and the provisions of Policy. 1.30, Layoff, shall apply.
|Military Service Disability||When employees become disabled during military service and cannot perform duties of their previous positions, and reasonable accommodations are not possible without undue hardship to the agency, efforts must be made to place them in the most closely comparable positions for which they qualify with no loss of seniority.|
|LEAVE BENEFITS UPON REINSTATEMENT|
|For employees who return to state service, Military Leave Without Pay is not considered a break in state service. Thus, periods of military leave without pay do not interrupt state service for the purpose of computing seniority, determining annual leave accrual rates and VSDP credits, or establishing eligibility for sick leave payment upon termination.|
Employees' periods of military leave without pay will be included as state service when determining their rates for accruing annual leave.
If an employee chooses to receive pay for accrued annual leave when going on LWOP-military and then returns to state service within 180 days, he may buy back the annual leave for which he was paid by reimbursing the full amount received to the paying agency.
|Compensatory And Overtime Leave||Retained compensatory leave will be available for use during the year following reinstatement. Any unused compensatory leave retained from before military leave will expire one year after reinstatement. Retained overtime leave does not expire and will remain until the employee uses the time or separates from state employment and receives payment.|
|Traditional Sick Leave||An employee who returns from military leave to state service within 180 days may buy back any sick leave for which he was paid by reimbursing the full amount received to the paying agency The remaining 75% that could not be paid will be restored when the purchase is complete. Employees who repurchase sick leave upon return do not have to serve another five-year period eligibility period for payment of sick leave upon separation.|
|VSDP Sick Leave and Family and Personal Leave||If the employee is reinstated within the same leave year (January 10-January 9), the VSDP leave balances he or she had when called to duty will be reactivated. If reinstatement occurs in a new leave year, the employee will receive a new allotment of sick leave and family and personal leave based on months of service, as described in Policy 4.57, Virginia Sickness and Disability Program.|
|Family Medical Leave (FMLA)||Time spent on military leave without pay counts toward an employee’s eligibility for FMLA.|
|HEALTH AND RELATED BENEFITS UPON REINSTATEMENT|
|Health Insurance Coverage||
When the employee returns to state service, the employee may make health benefits elections to enroll in a plan and select a membership level if the employee was gone for more than 30 days.
If the employee returning from military leave without pay was gone less than 30 days, the employee must return to the same plan and membership level in which he or she was enrolled prior to the leave. Premiums will be deducted on a pre-tax basis. Benefits coverage will become effective either on the first day of the month of his or her reinstatement to active state employment, or on the first day of the month following the date of his or her reinstatement to active state employment, provided that the employee submits the appropriate paperwork within 31 days of reinstatement from military leave without pay.
If the employee returning from military leave without pay was gone less than 30 days, the employee must return to the reimbursement account(s) elections he or she had prior to the leave.
If the employee returning from military leave without pay was gone more than 30 days, the employee may make new elections for both the Medical and Dependent Care Accounts provided that the employee submits the appropriate paperwork within 31 days of reinstatement from military leave without pay. The account(s) will be effective the first of the month following the receipt of the completed paperwork.
|Life Insurance||When an employee is reinstated to active state employment following military leave without pay, the employee’s basic group life insurance coverage will continue or resume, as appropriate.|
|Retirement Credit||Employees reinstated to state service after active military duty are entitled to retirement service credit for periods of military LWOP as stipulated in Virginia Retirement System guidelines.|
|Probationary Period Affected||Probationary employees who take military leave with or without pay for more than 14 calendar days will have their probationary periods extended for the length of the leave, including the initial 14 days.|
|Compensation||Employees returning to their previous positions from military leave shall be reinstated at the same salary as when they were placed on military leave status, or the salary they would have attained had they kept their positions continuously during military service (escalator principle) as follows:
Classified employees shall provide to agency heads or their designees copies of orders documenting dates and types of required military training, physical examination, or active duty from appropriate military officials, including discharge documentation. Employees must also provide other required documentation as requested by their agencies. For example, an employee on military leave without pay must submit a Leave and Earnings statement (LES) to receive the Active Military Supplement.
Employees must request military leave, indicating the type of military leave for which they are applying. For example, they must indicate leave with or without pay. If leave with pay, they should designate the type of leave, including whether and how any accrued leave is to be applied. See Military Leave Worksheet, Attachment A.
Employees requesting to use Military Bank leave must certify that they were eligible to accrue Military Bank leave by their membership in the National Guard or the Military Reserves.
In case of emergency orders to military service, employees must notify supervisors as soon as possible, and complete leave request forms when feasible, or upon return.
Employees seeking reinstatement to state employment after a period of active military duty must make their requests in accordance with USERRA and other requirements given in this policy.
Agencies should inform employees who are called to active military service of their rights, status, and obligations to the state during and after their period of active duty.
Agencies should establish guidelines for employees to follow for submitting requests for military leaves of absence and for monitoring such leaves to ensure that no more than 15 work days (1/260 of an employee’s regular scheduled work hours during federal fiscal year) with pay are granted for military training and active duty in a federal fiscal year. Agencies may also need to collect and maintain information related to employees’ military status, earnings, or other data. For example, agencies must verify an employee’s eligibility for the Active Military Supplement and calculate the amount of supplement due by reviewing the employee’s military Leave and Earnings Statement.
Agencies should update employee records in PMIS to reflect
Agencies must develop appropriate forms and procedures for recording the employee’s request to carry over excess annual leave as Military Bank leave, must verify the employee’s eligibility for Military Bank leave, and must ensure that correct leave records are maintained.
Termination from Military Leave
The termination report of an employee on paid Military Leave who resigns or is terminated from state service will show the last day of paid leave as the separation date. If an employee on Military Leave Without Pay resigns or is terminated, the termination report will show the separation date as the date the notification of resignation is received, or the date of the termination action.
The Department of Human Resource Management issues this policy pursuant to the authority provided in Chapter 10, Title 2.2 of the Code of Virginia.
The Director of the Department of Human Resource Management is responsible for official interpretation of this policy, in accordance with section 2.2-1201 of the Code of Virginia.