Policy Title

The Administrative Manual: The Policies and Procedures of Tompkins County Government

Military Leave

Objective:

Reference:

(All applicable federal,

state, and local laws)

Legislative Policy

Statement:

General Information:

To establish a military leave policy for County

employees.

NYS Military Law, Article 11, §242-243; U.S. Department

of Labor, Uniformed Services Employment and

Reemployment Rights Act (USERRA); Americans with

Disabilities Act (1990); The NY Patriot Plan III; NYS Civil

Service Law

Employees on ordered military duty status, whether

voluntary or involuntary, shall be entitled to leave and

reemployment as allowed by NYS Military Law and

USERRA.

Policy/Procedure

Number:

Effective Date:

Responsible

Department:

Modified Date (s):

03-15

January 12, 1981

Human Resources

June 28, 1988;

December 2, 2003;

November 16,

2004; July 3, 2007;

February 4, 2009;

December 6, 2011;

May 19, 2020

Resolution No.:

Next Scheduled

Review:

2001-244; 2002-

313; 2004-232;

2007-126; 2009-18;

2011-118; 2011-

221; 2020-93

May 2025

I. Definitions:

Employee - All persons filling positions of any rank within County government,

including elected or appointed officials, paid staff, and members of any

administrative board, commission, or agency of that government, interns, whether

paid or unpaid, and volunteers.

Ordered Military Duty - Any military duty performed in the service of the state or

of the United States pursuant to orders issued by competent State or Federal

authority, with or without the consent of such public officer or employee. Service in

the uniformed services on a voluntary or involuntary basis includes, but is not

limited to the following:

• Active duty and active duty for training;

• Initial active duty for training;

• Inactive duty training;

• Full-time National Guard or Reserves duty;

• Service school or schools;

• Monthly meetings;

• Absence from work for an examination to determine a person’s fitness for

any of the above types of duty;

• Funeral honors duty; or

• Duty performed by intermittent employees of the National Disaster Medical

System (NDMS), which is part of the Department of Health and Human

Services, when activated for a public health emergency, and approved

training to prepare for such service.

Promptly Reemployed - Means as soon as is practicable under the

circumstances of each individual case.

II. Policy:

Reasonable Efforts - Includes but is not limited to any training necessary to

update a returning employee’s skills so that they have the ability to perform the

essential tasks of the position. If the employee has a disability incurred or

aggravated during the performance of uniformed service, the employer must make

reasonable efforts to accommodate the disability and to help the employee

become qualified to perform the duties of the reemployment position.

Supplemental Salary - The pay calculated as the difference between military

salary and County salary, where the military salary is less than the County salary.

Termination of Military Duty - The date of a certificate or release of honorable

discharge, a release or discharge other than bad conduct or dishonorable from

service, a certificate of completion of training and service, or in the event of the

incurrence of a temporary disability arising out of and in the course of such military

duty, the date of termination of such disability.

United States Military (Armed Forces) - Consists of the following: Army, Navy,

Marines, Air Force, Coast Guard, Army Reserve, Naval Reserve, Marines

Reserve, Air Force Reserve, Coast Guard Reserve, Army National Guard, Air

National Guard, Commissioned Corps of the Public Health Service, and any other

category of persons designated by the President in time of war or emergency.

A. The granting of Military Leave is not within the discretion of the County.

Employees are entitled to Military Leave as a matter of right.

B. Any employee who is or becomes a member of any force of the United States

Military or of any reserve force or reserve component of the United States

Military, shall be entitled to a leave of absence with or without pay, as

applicable, while engaged in the performance of ordered military duty and while

going to and returning from such duty.

C. Retaliation and discrimination because of past, current, or future military

obligations are prohibited. This includes, but is not limited to hiring, promotion,

termination, and benefits.

D. Any employee who takes Military Leave will be entitled to all rights and benefits

that they would have attained had they remained continuously employed and

will be entitled to participate in any rights and benefits that are available to

employees on comparable non-military leaves of absence.

E. Time spent on Military Leave shall not count as time worked toward completing

a probationary period (either initial probation or promotional probation).

Employees shall complete the remaining time of probation when they return

from military duty.

F. Employees returning from military duty must be “promptly reemployed”.

G. Employees will not be eligible to assert leave rights under this policy or under

Federal and/or State law if any of the following disqualifications apply:

• Separation from duty with a dishonorable or bad conduct

discharge;

• Separation from duty under other than honorable conditions.

III. Procedure:

Regulations for each military branch specify when separation from

the service would be considered “other than honorable”;

• Dismissal of a commissioned officer in certain situations involving

a court martial or by order of the President in time of war; or

• Dropping an individual from the rolls when the individual has been

absent without authority for more than three months or is

imprisoned by a civilian court.

A. Requesting Military Leave

1. Unless military necessity prevents it or it is otherwise impossible or

unreasonable, an employee should provide their Department Head and

Department of Human Resources with notice of the need for leave as far in

advance as is reasonable under the circumstances.

2. To request Military Leave, it is recommended the employee provide notice

to their Department Head and the Department of Human Resources in

writing by completing a Request for Military Leave of Absence Form

(Appendix A). Notice may also be given verbally. Notification of Military

Leave may also be provided by an appropriate officer of a branch of the

United States Military.

Note: The Request for Military Leave of Absence Form can be found at

“Request for Military Leave of Absence Form”.

3. All employees ordered to military duty must provide a copy of such orders

or schedule covering all duty days to the Department of Human Resources

prior to their leave and, if extended, submit a copy of their extended

ordered as soon as practical.

B. Military Leave with Pay

1. Employees on Military Leave shall be paid their full regular salary for any

and all periods of absence while engaged in the performance of ordered

military duty, and while going to and returning from such duty, not

exceeding a total of thirty (30) days or twenty-two (22) working days,

whichever is a greater benefit, in any one calendar year and not exceeding

thirty (30) days or twenty-two (22) working days, whichever is a greater

benefit, in any one continuous period of such absence.

2. In the event an employee remains on Military Leave for more than thirty

(30) days, the employee shall be paid a supplemental salary for any and

all periods of absence while engaged in the performance of ordered

military duty, and while going to and returning from such duty, not

exceeding an additional sixty (60) days or forty-four (44) working days,

whichever is a greater benefit, in any one calendar year and not exceeding

sixty (60) days or forty-four (44) working days, whichever is a greater

benefit, in any one continuous period of such absence. The combination of

their full military compensation and the supplement will equal what would

otherwise be an employee’s regular base County pay retroactive to the

date of their activation.

Note: If military pay is equal to or in excess of County base salary, no

supplemental payment will be made.

3. In order to justify the payment of supplemental salaries, the County

requires documented proof of an employee’s current military salary. This

documentation must be submitted to the Department of Human Resources

as soon as practicable in order to ensure prompt and accurate payment of

wages.

4. Paid time off (vacation, sick, personal) will continue to accumulate during a

paid leave of absence. An employee on a paid leave may claim

bereavement pay or holiday pay.

C. Military Leave without Pay

1. All employees are entitled to Military Leave without pay for a period not

exceeding five (5) years while employed by Tompkins County.

2. Employees on Military Leave without pay are able, but not required, to use

accrued paid time off, except sick time (vacation, personal, compensatory)

while on unpaid leave while for ordered military duty.

Note: Eight (8) categories of services are exempt from the five (5) year

limitation. Please refer to the Uniformed Services Employment and

Reemployment Rights Act of 1994 (USERRA) for further details outlining

these exemptions.

3. Paid time off (vacation, sick, personal, disability) will not accumulate during

an unpaid leave of absence. An employee on an unpaid leave may not

claim bereavement pay or holiday pay.

D. Employment Rights

1. Health Insurance

a. Tompkins County will continue to maintain the health coverage

(medical, dental, vision) for employees on military duty for ninety

(90) days or less as if the employee had remained employed.

b. Employees performing military duty of ninety-one (91) days or

more may elect to continue the County sponsored health plans for

up to twenty-four (24) months; however, they may be required to

pay up to 100% of the full premium. Employees wishing to

continue County sponsored health plan coverage should contact

the Department of Human Resources as soon as they are aware

they will be on duty exceeding the initial ninety (90) days of leave

to prevent a lapse in coverage.

c. It is recommended that employees check with appropriate military

personnel to determine what medical benefits, if any, are available

while on military duty. If an Employee does not choose

continuation of coverage through the County (i.e., waives

coverage) during their unpaid leave of absence, benefits will be

reinstated following their timely return to work.

2. Pay Rate

a. An employee restored to their position after the termination of their

military duty is entitled to the rate of compensation they would

have received had they remained in their position continuously

during such period of military duty.

b. Employees may not to be subjected directly or indirectly to any

loss of time service, wage increases, seniority, or any other right

or privilege or to be prejudiced in any way with regard to

promotion, transfer, re-instatement, etc.

3. Pension/Retirement Plans

a. Pension plans which are tied to seniority are given separate,

detailed treatment under the law. The law provides that:

• A reemployed person must be treated as not having

incurred a break in service with the County maintaining a

pension plan;

• Military service must be considered service with the

County for vesting and benefit accrual purposes;

• The County is liable for funding any obligation of the plan

to provide required benefits; and

• The reemployed person is entitled to any accrued benefits

contingent upon employee contributions only to the extent

that the person repays the employee contributions.

b. If an employee has been absent for military service for ninety-one

(91) or more days, the County may delay treating the employee as

not having incurred a break in service for pension purposes until

the person submits satisfactory documentation establishing

reemployment eligibility. However, such contributions have to be

made promptly for persons who are absent for ninety (90) days or

less.

E. Reemployment after Military Duty

1. Time Limits for Returning to Work

To qualify for Military Leave protections, an employee must be available to

return to work within certain time limits. These time limits for returning to

work depend (with the exception of fitness-for-service examinations) on

the duration of a person’s military service.

Note: An employee’s reemployment rights are not automatically forfeited if

the person fails to report to work or to apply for reemployment within the

required time limits. In such cases, the person will be subject to County’s

established rules governing unexcused absences.

a. Service of 1-30 days

• The person must report to their employer by the beginning of

the first regularly scheduled work period that begins on the

next calendar day following termination of duty, after

allowance for safe travel home from the military duty location

and an 8-hour rest period.

For example: An employer cannot require an employee who

returns home at 10:00 p.m. to report to work at 12:30 a.m. that

night. But the employer can require the employee to report for

the 6:00 a.m. shift the next morning.

• 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 8-hour period.

• The time limit for reporting back to work for a person who is

absent from work in order to take a fitness-for-service

examination is the same as the one above for persons who

are absent for 1-30 days. This period will apply regardless of

the length of the person’s absence.

b. Service of 31-180 days

• An employee on Military Leave shall be reinstated to County

service provided they make an application for such

reinstatement within fourteen (14) days after the termination of

military duty.

• If submission of a timely application is impossible or

unreasonable through no fault of the person, the application

must be submitted as soon as possible on the next day when

submitting the application becomes possible.

c. Service of 180 days or more

• An employee on Military Leave shall be reinstated to County

service provided they make an application for such

reinstatement within ninety (90) days after the termination of

military duty.

• At the discretion of the Commissioner of Human Resources or

their designee, an employee may be reinstated at any time

after such ninety (90) day period up to one (1) year after the

termination of their military duty.

d. Timeframe Extensions for Disability

• Periods for reinstatement or to reapply for reemployment may

be extended for up two (2) years if the employee is

hospitalized or convalescing from an illness or injury incurred

or aggravated during the performance of military duty.

• The two (2) year 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

(2) year period impossible or unreasonable.

2. Returning to a Position

Reemployment to a position with the highest priority reflects the “escalator”

principle. The escalator principle requires that each returning service

member be reemployed in the position the employee would have occupied

with reasonable certainty if the employee had remained continuously

employed, with full seniority. The position may not necessarily be the same

job the employee previously held.

For instance, if the employee would have been promoted with reasonable

certainty had they not been absent, the employee would be entitled to that

promotion upon reinstatement. On the other hand, depending on economic

circumstances, reorganizations, layoffs, etc., the position could be at a

lower level than the one previously held, it could be a different job, or it

could conceivably be in layoff status. In other words, the escalator can

move up or down.

Except with respect to employees who have a disability incurred in or

aggravated by military service, the position into which an employee is

reinstated is based on the length of an employee’s military service.

a. Service of 1-90 days

An employee whose military service lasted 1 to 90 days must

be “promptly reemployed” in the following order of priority:

• In the job the employee would have held had they

remained continuously employed, so long as they are

qualified for the job or can become qualified after

reasonable efforts by the County; or

• In the job in which the employee was employed on the

date of the commencement of the service in the

military, only if they are not qualified to perform the

duties of the position above after reasonable efforts by

the County to qualify the employee.

• If the employee cannot become qualified for either

position described above (other than for a disability

incurred in or aggravated by the military service) even

after reasonable efforts, the employee must be

reemployed in a position that is the nearest

approximation to the positions described above (in

that order) which the employee is qualified to perform,

with full seniority.

b. Service of 91 days or more

The law requires the County to promptly reemploy persons

returning from military service of ninety-one (91) days or more

in the following order of priority:

• In the job the employee would have held had they

remained continuously employed, or a position of like

seniority status and pay so long as the employee is

qualified for the job or can become qualified after

reasonable efforts by the County; or

• In the position of employment in which the employee

was employed on the date of the commencement of

the service in the military, or a position of like

seniority, status, and pay the duties of which the

employee is qualified to perform, only if the employee

is not qualified to perform the duties of the position

above after reasonable efforts by the County to qualify

the employee.

• If the employee cannot become qualified for either

position described above: in any other position that

most nearly approximates the above positions (in that

order) that the employee is qualified to perform with

full seniority.

c. Returning Disabled Employees

If an employee has a disability incurred or aggravated during

the performance of military duty and they cannot become

qualified for the reemployment position despite reasonable

efforts by the County to accommodate and qualify them to

perform the duties of the position, the employee must be

reemployed in a position according to the following priority:

• A position that is equivalent in seniority, status, and

pay to the escalator position. The employee must be

qualified to perform the duties of this position or be

able to become qualified to perform them with

reasonable efforts by the County; or

• If the employee cannot become qualified for the

position, the employee must be employed in a position

that, consistent with the circumstances of that their

case that most nearly approximates the position

above in terms of seniority, status, and pay. Such a

position may be a higher or lower position, depending

on the circumstances.

• The County is excused from making efforts to qualify

returning employees or from accommodating

employees with service-connected disabilities only

when doing so would be of such difficulty or expense

as to cause “undue hardship” as defined by the

Americans with Disabilities Act.

3. Documentation upon Return

a. Tompkins County has the right to request that an employee

who is absent for a period of service of thirty-one (31) days or

more provides documentation showing that:

• the employee’s application for reemployment is

timely;

• the employee has not exceeded the five (5) year

service limitation; and

• the employee’s termination from duty was other

than disqualifying.

b. If an employee does not provide satisfactory documentation

because it is not readily available or does not exist, the

employer still must promptly reemploy the person. However, if

after reemploying the person documentation becomes

available that shows one (1) or more of the reemployment

requirements were not met, the employer may terminate the

person from County employment and any rights or benefits

that may have been granted.

4. Protection from Discharge

A reemployed employee may not be discharged without cause:

a. For one (1) year after the date of reemployment if the employee’s

period of military service was for 181 days or more; or

b. For 180 days after the date of reemployment if the employee’s

period of military service was for 31 to 180 days.

c. Employees who serve for thirty (30) or fewer days are not

protected from discharge without cause. However, they are

protected from discrimination because of military service or

obligation.

Appendix A