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Leaves for Military Duty and Leaves for Military Families
Hourly 6.3
Revised November 17 , 2008
This policy applies to all Hourly employees.
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The Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Code of Federal Regulations (CFR), Part 1002 of Chapter 11 of Title 20, establish reemployment rights for employees who serve or have served in the uniformed services of the United States.
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As soon as a supervisor or department head is informed or becomes aware that an employee is going to leave or has left for military service, or is requesting to return from military service, the supervisor or department head must consult with the campus Human Resources office to insure University compliance with USERRA and the regulations.
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A military leave of absence without pay shall be granted for Hourly employees in positions other than those that are temporary. The regulations define temporary positions as those that exist for a brief, non-recurrent period with no reasonable expectation that the employment would have continued for a significant period.
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To qualify for USERRA rights, an Hourly employee must be in an eligible position and meet one of the following criteria:
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The Hourly employee is inducted through Selective Service.
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The Hourly employee enlists voluntarily.
- The Hourly employee is called through membership in the uniformed services, defined as the Armed Forces; the Army National Guard; the Air National Guard; the commissioned corps of the Public Health Service; and, for USERRA coverage only, service as an intermittent disaster response appointee upon federal activation of the National Disaster Medical System (NDMS) or attending NDMS authorized training in support of its federal mission.
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The limit on the cumulative time away from work at the university for military service and still retain the USERRA rights is five years.
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The period covers the dates that the Hourly employee is actively performing service. The five-year limit may also extend to a later date when the Hourly employee is able to obtain a release from active duty. Time between completing the uniformed service and reporting back to work or requesting to return does not count against the five year limit. The law provides for other exceptions which are to be discussed with the campus Human Resources Office if a case arises.
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When an Hourly employee who was in an eligible position at the start of the military service, completes military service and requests to return to work (orally or in writing), he or she is to be returned within two weeks of the request if the following criteria are met:
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The Hourly employee was discharged from military service under honorable conditions
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The Hourly employee requests to return to work within the following time limits:
Employees who serve for this amount of military service Must apply (orally or in writing) to return to work this many days after release from duty Less than 31 days At the beginning of the first regularly scheduled workday* 31 through 180 days No later than 14 days Over 180 days No later than 90 days * Employees must be allowed, however, a "reasonable"
time to return home, rest, and travel to their place of employment.
- The cumulative period of time away from the university in military service does not exceed five years, or if it does, the exceptions provided for in USERRA apply
E. USERRA reappointment provisions
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Hourly employees in eligible positions at the time of the start of the military leave are entitled to the reappointment provisions of USERRA. An Hourly employee who completes military duty and meets the conditions above, will be restored to the status that he or she would have enjoyed as an employee as if the leave or separation had not occurred. This includes:
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Working conditions established by one’s length of employment.
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The position that the person would have been in had the leave or separation not occurred. This may be at the same, higher or lower level.
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The salary or pay rate that the employee would have been at but for the absence for military service.
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If he or she had been in a PERF eligible position, the IU funded contributions that would have been allocated to the employee’s retirement plan but for the absence for military service.
- The time in the military service will count towards fulfilling the length of employment and hours of work requirements to be eligible for a leave under the FMLA policy.
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The right to return to work exists whether the Hourly employee was placed on a leave of absence or separated employment for military service.
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The right to return to work exists even if the Hourly employee gave an explicit, written statement at the start or during the leave that he or she did not intend to return to work at the university and resigned or was separated based on this statement. However, such an employee is not entitled to the non-seniority right and benefit of IU funded contributions to the employee’s retirement plan (paragraph E.1.d. above).
- An employee returned to work under the provisions of USERRA may not be terminated except for cause for 180 days after his or her date of return if the most recent period of uniformed service was less than 181 days or for one year after the date of return if the most recent period of uniformed service was more than 180 days.
- An employee is not entitled to any USERRA rights or benefits if the employee separated from military service with a dishonorable or bad conduct discharge or under "other than honorable" conditions as defined by the regulations for the particular branch of military service.
G. Leaves for Military Families
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During the 30-day period following a family member's return from active duty.
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The time can be taken in full in one period or split amongst the periods.
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An employee is eligible for such leave for each family member on active duty.
An employee who is a family member of a person on active duty in the United States Armed Forces is eligible for military family leave under the Indiana Military Family Leave Act, www.in.gov/legislative/ic/code/title22/ar2/ch13.html.
The Act provides for leave for a total of 10 workdays per calendar year during one or more of the following periods:
Within the 30-day period before a family member begins active duty,
During the period that a family member is on active duty, or
To qualify as a family member, the employee must be the spouse, parent (biological, adoptive, or court-appointed guardian or custodian), biological grandparent, or sibling (by blood, half-blood, or adoption) of the person on active duty. Time off for employees who are other family members is discretionary and subject to supervisory approval.
Active duty is defined as full-time service on active duty orders in the armed forces of the United States or the Indiana Army or Air National Guard for a period that exceeds 89 consecutive calendar days. Armed forces of the United States means the active or reserve components of the Army, Navy, Air Force, Coast Guard, Marine Corps, or Merchant Marine.
A leave request that meets the family member and active duty criteria above must be granted unless the employee:
Has not been employed for at least 12 months and worked at least 1,500 hours in the 12 months immediately preceding the day that the military family leave begins, or
The employee has used all 10 workdays for that family member for the calendar year.
The Military Family Leave Act does not provide additional time off with pay. An Hourly employee must take the time off without pay.
Time off without pay during a military family leave is an excused absence and will not count in any attendance-related policies.
An employee is to provide written notice, including a copy of the active duty orders, if available, at least 30 days before the date on which the leave is to begin, or as soon as possible if the active duty orders are issued less than 30 days before the date the leave is to begin.
