HR Policy and Procedure #75 Uniformed Services Leave (Military Leave) Revised August 15, 2023

Purpose

Uniformed Services Leave (Military Leave) shall be granted to eligible employees in accordance with applicable state and federal laws, including the Uniformed Services Employment and Reemployment Rights Act of 1994 (38 U. S. Code (U.S.C.) 4301 et seq.) (USERRA) and Kentucky Revised Statutes (KRS) 61.373 through 61.377 and KRS 61.394.  This policy shall be interpreted in accordance with such laws, including any future amendments.

Policy

1. All full- or part-time regular employees ordered into service in the uniformed services (defined below) are entitled to military leave in accordance with this policy. Military leave is not available to temporary employees.   
2. Discrimination against an employee or prospective employee based on service in, or application for service in, the uniformed services is prohibited.  Retaliation against an employee who has taken action to enforce a protection afforded to any person under USERRA or exercise a right under USERRA also is prohibited.  38 USC 4311.

Definitions.

1. The term “service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, State active duty for a period of 14 days or more, State active duty in response to a national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.), State active duty in response to a major disaster declared by the President under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170) (the “Stafford Act”), a period of absence for the purpose of an examination to determine the fitness of the person to perform any such duty, a period for which a System member of the National Urban Search and Rescue Response System is absent due to an appointment into Federal service under section 327 of the Stafford Act, and a period of absence for the purpose of performing funeral honors duty as authorized by 10 U.S.C. 12503 or 32 U.S.C. 115.  38 USC 4303

1. The term “uniformed services” means the Armed Forces (Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard), the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, the commissioned officer corps of the National Oceanic and Atmospheric Administration, System members of the National Urban Search and Rescue Response System during a period of appointment into Federal service under section 327 of the Stafford Act, and any other category of persons designated by the President in time of war or national emergency.  38 USC 4303

Paid and Unpaid Leave

1. An employee must provide advance notice of their uniformed services obligations in accordance with this policy (see Process section below), unless giving notice is impossible, unreasonable, or precluded by military necessity.  38 USC 4312 (a) and (b).
2. An employee is entitled to paid military leave for up to twenty-one (21) calendar days in any one federal fiscal year (October 1 through September 30).  Twenty-one calendar days equates to 15 working days based on UK’s five-day work week.  KRS 61.394.  All other military leave is unpaid. 
3. An employee may request to use vacation leave that accrued before the beginning of their uniformed service leave to extend their paid status during their leave, but may not be required to do so. 38 USC 4316(d)
4. An employee will continue to accrue vacation leave and temporary disability leave (TDL) while receiving paid military leave, but not during unpaid military leave.
5. Previously accrued vacation leave and TDL will be restored upon return from military leave.

Reemployment – Notice (38 USC 4312)

1. Employees generally are entitled to reemployment for up to five years of military service. 38 USC 4312(c).
2. An employee must give notice of their intent to return to employment as follows, unless giving notice is impossible, unreasonable, or precluded by military necessity. 38 USC 4312 (e).
   
    




3. Employees who are unable to report within these time limits may be entitled to additional time. Time limits may be extended for up to two (2) years, or more, if an individual is hospitalized or convalescing from an injury related to uniformed services duty.  38 USC 4312 (e).
4. Employees absent for 31 days or more may be asked to provide documentation that their application for re-employment is timely; they have not exceeded the 5-year limitation; and  they were not separated from service in a manner that disqualifies them from reemployment under USERRA. 38 USC 4312 (f).

Reemployment -- Position

1. Except with respect to employees who have a disability incurred in or aggravated by military service, the position into which a person is reinstated is based on the length of a person’s military service. 38 USC 4313.
2. Employees on leave for 90 days or less will be promptly reemployed in the following order of priority:
   1. In the position they would have held had they remained continuously employed without interruption for uniformed service (“Escalator Position”), so long as they are qualified for the job or can become qualified after reasonable efforts by UK; or
   2. In the position in which they were employed when they began their uniformed service (the “Pre-Service Position”), only if they are not qualified to perform the duties of the position referred to in subparagraph (a) after reasonable efforts by UK to qualify them.
   3. If the employee cannot become qualified for either position described in (a) or (b) above (other than for a disability incurred in or aggravated by the military service) even after reasonable UK efforts, they will be reemployed in a position that is the nearest approximation to the Escalator Position or Pre-Service Position (in that order) that they are qualified to perform, with full seniority.
3. Employees on leave for 91 days or more will be promptly reemployed in the following order of priority:
   1. The Escalator Position, or a position of like seniority status and pay, so long as they are qualified for the position or can become qualified after reasonable efforts by UK; or
   2. The Pre-Service Position, or a position of like seniority, status, and pay, the duties of which they are qualified to perform, only if they are not qualified to perform the duties of a position referred to in subparagraph (a) after reasonable efforts by the employer to qualify them.
   3. If the employee cannot become qualified for either position described in (a) or (b) above, then in any other position that is the nearest approximation to the Escalator Position or Pre-Service Position (in that order) that the employee is qualified to perform with full seniority.
4. Employees with disabilities incurred or aggravated while in military service.
   1. UK will make reasonable efforts to accommodate the employee’s disability so that they can perform the duties of the Escalator Position.   
   2. If, despite reasonable accommodation efforts, the employee is not qualified for the Escalator Position due to his or her disability, the employee will be reemployed in a position of equivalent seniority, status, and pay, which the employee is qualified for or be able to become qualified for with reasonable efforts by UK.
   3. If the employee cannot become qualified for the position in either (a) or (b), they will be employed in a position that, consistent with the circumstances of that person’s case, most nearly approximates the position in (b) in terms of seniority, status, and pay. Such a position may be a higher or lower position, depending on the circumstances.

Employee Benefits – Generally

An employee who is reemployed is entitled to the seniority, rate of pay, and other rights and benefits they had on the date they began uniformed service leave, plus that which they would have attained if continuously employed.    This includes rights and benefits generally provided to employees of similar status and pay.

Retirement Plan

1. While on military leave, a regular employee may participate in UK’s retirement plan, if, before beginning leave, the employee arranges to make payment contributions. 
2. Upon the employee’s return from leave, the University will make any contributions to the plan that the University would have made had the employee not been absent, but will not credit the employee with interest.
3. Upon return from military leave, a regular employee may make missed contributions to the plan over a period equal to three (3) times the period of the leave, but no longer than five (5) years. 38 USC 4318
4. The University will match any employee make-up contributions, but will not credit the employee with interest.

Health Care Coverage

While on military leave, a regular full-time employee may continue participation in a University-sponsored health care plan if, before beginning leave, the employee arranges for payment of the premium contributions.

Life Insurance

While on military leave, a regular full-time employee may continue participation in the University’s life insurance plan if, before beginning leave, the employee arranges for payment of the premium contributions.

Notification Process

1. An employee requesting uniformed services leave or reemployment shall submit a request to their supervisor or department head.  While verbal requests are permitted, written requests accompanied by a copy of the military orders are preferred.
2. The supervisor or department head shall provide Enterprise Applications (EA) Human Resource Services with a request for Uniformed Services/Military Leave quota, and a copy of the orders, via the ITS Self Service Feature. The EA HR team will add leave quota for the employee.
3. The department head is responsible for receiving the request and scheduling an employee’s Uniformed Services Leave for training. The department head shall submit requests for Uniformed Services Leave to Enterprise Applications (EA) Human Resource Services via the ITS Self Service Feature. EA Human Resource Services has sole authority to add Uniformed Services/Military Leave quota into the university's centralized information resource system.
4. The supervisor or department head shall contact Employee Relations, so that the employee’s vacation and temporary disability leaves may be restored. The employee should contact Human Resources Office of Employee Benefits for restoration of other benefits.

Types of Military Leave and Lengths of Service Time

1. Reserve Training Leave for inactive duty occurs when an employee attends weekly or monthly meetings or weekend drills.
2. Temporary Uniformed Services Leave occurs when an employee is ordered to full-time active Uniformed Services training for a period not greater than 180 calendar days, including time spent traveling to and from duty.
3. Extended Uniformed Services Leave occurs when an employee enlists or is ordered into
   1. Active Duty Service of any length,
   2. Active Duty Training greater than 180 calendar days, or
   3. Active Federal Uniformed Services as a member of the National Guard or Naval Militia.
   4. Leave shall be granted for a period no greater than five years. In addition, leave shall be granted for a period up to six months from the date of release from duty.
4. Emergency National Guard Leave occurs when an employee is called to active duty by proclamation of the Governor during a state of emergency. When a state of emergency is called by the President of the United States, the employee is placed on Extended Uniformed Services Leave.
5. Physical Examination Leave occurs when an employee is required to take a pre-induction or pre-enlistment physical examination. Leave shall be granted for time necessary to complete the examination, including time spent traveling.