5.10 Military Leave

An active member of the U.S. Army Reserve, the U.S. Naval Reserve, the U.S. Air Force Reserve, the U.S. Marine Corps Reserve, the U.S. Coast Guard Reserve, the U.S. Public Health Service Reserve or the Kentucky National Guard required to serve under order for training, duty or a fitness examination shall be without loss of time, pay, regular leave, impairment of efficiency rating or any other rights to which she/he is entitled, when her/his military orders require her/his absence from work (20 CFR 1002.54 and KRS § 61.394.)

An employee seeking military leave (or an appropriate officer of the uniformed service in which such service is performed) must give as much advance notice as is practicable, either written or verbal, to the employee’s immediate supervisor, a higher authority in the chain-of-command or to the head of Human Resources or her/his designee.

While on military leave during normally scheduled work hours and days, a full-time employee will receive up to twenty-one (21) days of paid leave per federal fiscal year (October 1 – September 30) for days she/he would be scheduled to work if not on military leave (KRS § 61.394) and is not permitted to take other time off in lieu of this. This is prorated for a part-time employee.

The number of hours paid per each day of military leave will be based on the number of hours in the employee’s workweek divided by the number of business days in the workweek.

Any additional military leave time beyond twenty-one (21) days will be treated as approved leave without pay (see section 5.13), unless additional paid military leave has been accrued pursuant to section 5.10.4 of these policies. Upon written request, an employee can use accumulated annual leave concurrently with approved leave without pay on the first pay period(s) after the paid military leave days is exhausted.

Any unused military leave in a federal fiscal year will be carried over to the next year and will expire two (2) years after it has accrued (KRS § 61.394.)

The employee must present a copy of the military orders to her/his immediate supervisor upon receipt unless she/he is unable to do so because of military necessity (902 KAR 8:120(12).)

A copy of the orders will be filed in the employee’s personnel file for as long as the personnel file is retained.

An employee returning from military leave will be promptly re-employed in either the position she/he would have held had she/he remained continuously employed or a position with like status provided all of the following are true (38 USC § 4316(a)):

1. She/he meets the minimum qualifications for the position and presents proof of discharge other than dishonorable upon her/his return (38 USC § 4313(1))

2. She/he is discharged for a reason other than dishonorable (38 USC § 4304)

3. She/he returns to work or applies for return to work within the deadline 38 USC § 4312(a)(3)) (see section 5.10.6.1)

The employee will be treated as though she/he were continuously employed for purposes of determining benefits based on length of service (KRS § 61.394.)

The employee returning from military leave may not be terminated except with cause for a period of one (1) year after her/his restoration from military leave (38 USC § 4316(c)) unless the employment arrangement was for a brief, non-recurrent period.

The employee may enforce her/his reemployment rights according to 38 USC § 4322.

The deadline for returning to work depends on the length of the employee’s absence for military service as follows:

1. Service of 1 to 30 days or for fitness exam for any length of time - The employee must report to work by the beginning of the first regularly scheduled work day that begins on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an eight (8)-hour rest period. If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible after the expiration of the eight (8)-hour period (38 USC § 4312(A))

2. Service of 31 to 180 days – The employee must submit an application for reemployment1 no later than fourteen (14) days after completion of her/his service. If submission of a timely application is impossible or unreasonable through no fault of the employee, the application must be submitted as soon as possible on the next day when submitting the application becomes possible (38 USC § 4312(C))

3. Service of 180 or more days – The employee must submit an application for reemployment1 no later than ninety (90) days after completion of her/his military service (38 USC § 4312(D))

1 The application for reemployment need not follow any particular format, and may be either oral or in writing. The application must indicate that the employee is an employee returning from service in the uniformed services and that she/he seeks reemployment (20 CFR 1002.118.) 

Failure to report or apply within the required deadline is treated as a compulsory resignation (20 CFR 1002.117 and 38 USC § 4312(e)(3)) (see section 8.1.2.)

The reporting or application deadlines are extended for up to two (2) years for an employee who is hospitalized or convalescing because of an injury or illness incurred or aggravated during the performance of or arising from military service.

The two (2) year period will be extended by the minimum time required to accommodate a circumstance beyond an employee’s control that would make reporting within the two (2) year period impossible or unreasonable (38 USC § 4312(e)(2)(A)-(B).)

Upon return from military leave lasting thirty-one (31) days or longer, an employee must present documentation that she/he has not exceeded the five-year service limitation and that her/his separation from service was other than disqualifying under 38 USC § 4304.

Documents that establish eligibility for reemployment include the following:

• Department of Defense 214 Certificate of Release or Discharge from Active Duty

• Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service

• Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority

• Certificate of completion from military training school

• Discharge certificate showing character of service

• Copy of extracts from payroll documents showing periods of service

• Letter from National Disaster Medical System Team Leader or Administrative Officer verifying dates and times of training or federal activation

The types of documents necessary to establish eligibility for reemployment will vary from case to case, as not all of these documents are necessary or available in every instance (20 CFR 1002.123).

An employee who does not provide satisfactory documentation because it is not readily available or does not exist will still be eligible for reemployment. However, if, after reemploying her/him, documentation becomes available that shows one or more of the reemployment requirements were not met, NKY Health will have sufficient cause to terminate her/him and to rescind any rights or benefits that may have been granted after reemployment (20 CFR 1002.122.)

An employee on military leave may stop and/or start her/his benefits, including insurance coverage, subject to the terms, conditions and limitations of the respective plan(s) in which she/he is enrolled (38 USC § 4317). The employee will continue to participate in NKY Health’s retirement plan the same as an active employee (see section 4.2.1.)

For the purposes of benefit administration, unless otherwise specified by an applicable plan document, the first business day after the last day worked before beginning military leave will be considered the effective date of the military leave.

While on military leave, an employee must continue to pay the employee portion of any insurance premiums and benefit withholdings the same as if she/he were an active employee.

When sufficient paid leave is used, premiums and withholdings will be deducted as usual.

When an insufficient balance of paid leave exists, the employee must remit payment for any premiums and withholdings to NKY Health by the first of each month of unpaid leave. If the employee fails to make the required payment(s), NKY Health will make them on the employee’s behalf as a loan and deduct the payments from the first paycheck(s) following the employee’s return to work. If the employee fails to return to work at the end of military leave, NKY Health may take action to recover the loan amount.

NKY Health will continue to pay the employer portion of insurance premiums and benefit payments for an employee while she/he is on military leave.

An employee’s failure to return to work following the conclusion of military leave will be considered a compulsory resignation (see section 8.1.2) effective the date the military leave ended.

An employee who fails to return to work for at least thirty (30) calendar days after an unpaid military leave not due to circumstances beyond her/his control, must repay NKY Health for the amount of the employer-portion of premiums (see section 5.10.7.2) paid during the leave.

NKY Health may deduct the monies from the employee’s final pay and/or take legal action against the employee to recover such monies. Documentation substantiating the circumstances will be required.