READING SCHOOL DISTRICT

Transcription

1 No. 352 READING SCHOOL DISTRICT SECTION: TITLE: ADMINISTRATIVE EMPLOYEES MILITARY LEAVE ADOPTED: August 23, 2006 REVISED: September 27, MILITARY LEAVE 1. Purpose The Reading Board of School Directors recognizes the need to provide for a process and procedure for active military leave of absence for our employees that is constant with state and federal law. 2. Guidelines Background 38 U.S.C. Sec U.S.C. Sec. 4304, 4312 Uniformed Services Employment Rights Act (USERRA) forbids employers from denying employment or any benefit of employment (including retention or advancement) based on past or present military service or membership, application for military membership or service, or eligibility to be ordered to military service. Reservist employees must satisfy five (5) prerequisites to trigger USERRA rights to military leave and reemployment protection. 1. Must hold an existing civilian job. 2. Must give notice to employer of impending military duty where possible. 3. Cumulative length of service on military leave cannot exceed five years total. 4. Must report back to work or apply for reinstatement in a timely manner. 5. Character of military service must qualify as at least under honorable conditions. 38 U.S.C. Sec If employees meet the five (5) prerequisites discussed above, USERRA provides them with seven (7) basic categories of protection, appearing generally at 38 U.S.C Prompt reinstatement. 2. Same or like status, pay and seniority as if the absence had not occurred. Page 1 of 6

2 352. MILITARY LEAVE - Pg Restoration of health insurance coverage and optional continuation during absence. 4. Maintenance of pension credit. 5. Training, retraining, or other accommodations necessary to catch up. 6. Other non-seniority benefits to the extent available to others on unpaid leave. 7. Special protection from discharge following return. US Department Of Labor US DOL RESOLUTIONS (DOL) Veterans employment and training service (VETS) released final regulations 12/16/05 to take effect 1/18/06. Covered Employees All employees-but not independent contractors are covered in some manner. 1. Regular, full-time employees are protected from discrimination and retaliation and receive reemployment rights, subject to meeting certain eligibility and procedural requirements. 2. Temporary, part-time, probationary and seasonal employees only may be entitled to protection from discrimination and retaliation; reemployment rights do not apply for such brief, nonrecurrent positions when the employer does not have a reasonable expectation that the employment position will continue indefinitely or for a significant period. 3. Employees who are on layoff, strike or leave of absence immediately prior to beginning a period of uniformed service also are entitled to protection from discrimination and retaliation. Reemployment rights are contingent on whether the employer would have otherwise reemployed the employee but for the employee s absence for the uniformed services. Qualified Uniformed Services Includes: 1. Active duty. 2. Inactive duty for training. Page 2 of 6

3 352. MILITARY LEAVE - Pg Military fitness examinations. 4. Funeral honors duty. 5. Service as an intermittent disaster-response appointee upon activation of the National Disaster Medical System (NDMS) or participation in an authorized training program. 6. Federal National Guard Service. 7. Service in the commissioned corps of the Public Health Service. 8. Attendance at a military service academy. 9. Reserve Officer Training Corps (ROTC) under certain conditions. 10. Any category of persons designated by the President in a time of war or national emergency as a uniformed service. Employee Requests The employee s notice may be written or oral and should occur at least thirty (30) days in advance unless military necessity makes it impossible. Employees are not required to get permission from their employer before leaving for service and need not decide whether they intend to return to their employment upon completion of their tour of duty. Rather, the employee may defer the decision until after s/he concludes the period of service. Reinstatement The servicemember must return to work or apply for reemployment in a timely manner after the conclusion of military service. The timing depends on the length of the employee s military service: 1. Service of less than 31 days (or any length of the absence that was for an examination to determine fitness to perform military service) The employee must report back to work not later than the beginning of the first full regularlyscheduled work period on the first full calendar day following the completion of the military service, and the expiration of eight hours after a period allowing for safe transportation from the place of military service to the employee s residence. Page 3 of 6

4 352. MILITARY LEAVE - Pg Service for more than 30 but less than 181 days The employee must submit an application for reemployment (written or oral) not later than fourteen (14) days after completing service. If this is impossible or unreasonable through no fault of the employee, the employee must submit the application no later than the next full calendar day after it becomes possible to do so. 3. Service for more than 180 days The employee must submit an application for reemployment (written or oral) no later than ninety (90) days after completing service. A returning employee loses his or her reemployment rights if he or she is discharged from military service for dishonorable or bad conduct. Health Care Coverage USERRA entitles service members to continue their existing health plan coverage for a maximum of twenty-four (24) months during military service. Employees who serve for fewer than thirty-one (31) days will maintain the same premium rate, while employees who serve thirty-one (31) days or more may be charged up to 102% of the full premium. An employee cannot be precluded from electing continued health coverage because the election was untimely or impossible. An employer may cancel an employee s health insurance if the employee departs for service without electing coverage, but retroactive reinstatement may be required under certain circumstances. Upon return from service, the employee and his or her dependents must be reinstated in the health plan without any waiting period. Reinstatement does not require an employee to have chosen continued health coverage while in military service. 51 Pa. C.S.A. Sec. 7309c Pennsylvania law requires that health insurance and other benefits continue for anyone called into active federal or state duty, other than active duty for training, for 30 days at no cost to the employee. After the expiration of the first 30 days, the individual may continue his/her health coverage at his/her own expense by paying for the health insurance and other benefits at the same rates paid by the employer. In other words, the employer may not charge an administrative fee, such as the 2% fee permitted under COBRA, nor is the right to purchase insurance limited in time. 51 Pa. C.S.A. 7309(c). In this regard, Pennsylvania law is more favorable to the reservist. USERRA could, however, come into play if an individual were called to active duty for training. Under those circumstances, the employee would, for the first thirty (30) days, have to pay the usual employee contribution for medical insurance. After thirty (30) days, USERRA permits employers to require employees to pay up to 102% of the premium cost for a period of eighteen (18) months. Page 4 of 6

5 352. MILITARY LEAVE - Pg. 5 Pension Plans The new regulations clarify the timing of pension contributions and extend the contribution deadline for employers to the later of (a) ninety (90) days after the date of reemployment or (b) when plan contributions are normally due for the year. For employees who are enrolled in contributory plans and allowed to make up missed contributions or elective deferrals, repayment must be made during the time period starting with the date of reemployment and continuing for up to three (3) times the length of the employee s uniformed service. The employee must remain employed with the post-service employer during repayment and the repayment period cannot exceed five (5) years. Employees are not required to make up the full amount of their contributions or elective deferrals. Even if an employee fails to make up the missed contributions, the period of military absence would still count toward vesting and years of service for retirement eligibility and benefit calculation purposes. 1. Both the Public School Employee s Retirement Code (PSERC) and Pennsylvania s Military Code afford employees the options of continuing to make employee contributions during the military leave period or, instead, suspending payments into the fund. Written election on the option must be made within 60 days of the beginning of the leave of absence, and employees who fail to do so are deemed to have chosen to discontinue payments. 24 Pa. C.S.A. Sec. 8327a 2. The Public School Employees Retirement Code requires that employers continue to make contributions during an employee s military leave of absence even if the employee has chosen not to. 24 Pa. C.S.A. 8327(a). Notably, this provision of the Retirement Code is more favorable to the employee than USERRA and, therefore, must be applied. Payment For Military Service 51 Pa. C.S.A. Sec P.S. Sec. 14 Federal law required no payment for military service but Pennsylvania State law (51 Pa.C.S. 4102; 65 P.S. (14) requires fifteen (15) days of paid leave annually including training time. Reading s practice is to allow up to thirty (30) days paid military leave. Pennsylvania Military Code (51 Pa. C.S.A and 7309 et seq. Public School Code of 1949, 24 P.S et seq. 1. If Pennsylvania law provides a more favorable protection to our military men and women, then the Pennsylvania statues are to be followed. Page 5 of 6

6 352. MILITARY LEAVE - Pg If appropriate, Professional Staff can move vertically on the salary schedule and continue to accrue seniority. References: School Code 24 P.S. Sec Public School Employees Retirement Code 24 Pa. C.S.A. Sec et seq. Military Leave of Absence 51 Pa. C.S.A. Sec. 4102, Employment Rights of Members of the Armed Forces 38 U.S.C. Sec et seq. Page 6 of 6