RS 410 - Right of reinstatement to former employment
A. Any person who is absent from a position of employment by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this Part, within ten days , if all of the following conditions are met:
(1) The person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person's employer.
(2) The cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years.
(3) Except as provided in Subsection F, the person notifies the employer in writing of the intent to return to a position of employment in accordance with the provisions of Subsection E.
B. No notice is required under Subsection A if the giving of such notice is precluded by military necessity or, under all of the relevant circumstances, the giving of such notice is otherwise impossible or unreasonable. A determination of military necessity for the purposes of this Subsection shall be made pursuant to regulations prescribed by the uniformed services and shall not be subject to judicial review.
C. Subsection A shall apply to a person who is absent from a position of employment by reason of service in the uniformed services if such person's cumulative period of service in the uniformed services, with respect to the employer relationship for which a person seeks reemployment, does not exceed five years, except that any such period of service shall not include any service:
(1) That is required, beyond five years, to complete an initial period of obligated service.
(2) During which such person was unable to obtain orders releasing such person from a period of service in the uniformed services before the expiration of such five-year period and such inability was through no fault of such person.
(3) Performed to fulfill additional training requirements determined to be necessary for professional development, or for completion of skill training or retraining.
(4) Performed by a member of a uniformed service who has been:
(a) Ordered to or retained on active duty in time of war or national or state emergency.
(b) Ordered to or retained on active duty (other than for training) under any provision of law during a war or during a national emergency declared by the president or the congress or emergency declared by the governor or the legislature.
(c) Ordered to active duty in support of a critical mission or requirement of the uniformed services.
D.(1) An employer is not required to reemploy a person under this Part if:
(a) The employer's circumstances have so changed as to make such reemployment impossible or unreasonable.
(b) Such employment would impose an undue hardship on the employer.
(c) The employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.
(2) The employer shall have the burden of proving the impossibility or unreasonableness, undue hardship, or the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period.
E.(1) Subject to Paragraph (2), a person referred to in Subsection A shall, upon the completion of a period of service in the uniformed services, notify the employer referred to in such Subsection of the person's intent to return to a position of employment with such employer as follows:
(a) In the case of a person whose period of service in the uniformed services was less than thirty-one days, by reporting to the employer in the following manner:
(i) Not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence.
(ii) As soon as possible after the expiration of the eight-hour period referred to in Item (i), if reporting within that period is impossible or unreasonable through no fault of the person.
(b) In the case of a person who is absent from a position of employment for a period of any length for the purposes of an examination to determine the person's fitness to perform service in the uniformed services, by reporting in the manner and time referred to in Subparagraph (a).
(c) In the case of a person whose period of service in the uniformed services was for more than thirty days but less than one hundred eighty-one days, by notifying the employer in writing of the intent to return to a position of employment with the employer not later than fourteen days after the completion of the period of service or if submitting such written notice within such period is impossible or unreasonable through no fault of the person, the next first full calendar day when submission of such written notice becomes possible.
(d) In the case of a person whose period of service in the uniformed services was for more than one hundred eighty days, by notifying the employer in writing of the intent to return to a position of employment with the employer not later than ninety days after the completion of the period of service.
(2)(a) A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person's employer (in the case of a person described in Subparagraph (a) or (b) of Paragraph (1)) or submit written notice to such employer (in the case of a person described in Subparagraph (c) or (d) of such Paragraph). Except as provided in Subparagraph (b), such period of recovery may not exceed two years.
(b) Such two-year period shall be extended by the minimum time required to accommodate the circumstances beyond such person's control which make reporting within the period specified in Subparagraph (a) impossible or unreasonable.
(3) A person who fails to submit written notice of the intent to return to a position of employment within the appropriate period specified in this Subsection shall not automatically forfeit such person's entitlement to the rights and benefits referred to in Subsection A but shall be subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work.
(4) Nothing in this Subsection E shall restrict an employer's right to condition reemployment on its policies and procedures applicable to employees returning from leave, provided such policies and procedures are not in conflict with this and the other provisions of the Military Service Relief Act.
F.(1) A person who submits written notice in accordance with Subparagraph (c) or (d) of Paragraph (E)(1) or Paragraph (E)(2) shall provide to the person's employer (upon the request of such employer) documentation to establish the following:
(a) The person's application is timely.
(b) The person has not exceeded the service limitations set forth in Paragraph A(2) (except as permitted under Subsection C).
(c) The person's entitlement to the benefits under this Section has not been terminated by reason of dishonorable discharge from service in the uniformed services.
(2) Documentation of any matter referred to in Paragraph (1) that satisfies regulations prescribed by the adjutant general shall satisfy the documentation requirements in such Paragraph.
(3)(a) Except as provided in Subparagraph (b), the failure of a person to provide documentation that satisfies regulations prescribed pursuant to Paragraph (2) shall not be a basis for denying reemployment in accordance with the provisions of this Part if the failure occurs because such documentation does not exist or is not readily available at the time of the request of the employer. If, after such reemployment, documentation becomes available that establishes that such person does not meet one or more of the requirements referred to in Subparagraphs (a), (b), and (c) of Paragraph (1), the employer of such person may terminate the employment of the person and the provision of any rights or benefits afforded the person under this Part.
(b) An employer who reemploys a person absent from a position of employment for more than ninety days may require that the person provide the employer with the documentation referred to in Subparagraph (a) before beginning to treat the person as not having incurred a break in service for pension purposes.
(4) An employer may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not then readily available.
G. The right of a person to reemployment under this Part shall not entitle such person to retention, preference, or displacement rights over any person with a superior claim under the provisions of Title 5, United States Code, relating to veterans and other preference eligibles.
H. In any determination of a person's entitlement to protection under this Part, the timing, frequency, and duration of the person's training or service, or the nature of such training or service (including voluntary service) in the uniformed services, shall not be a basis for denying protection of this Part if the service does not exceed the limitations set forth in Subsection C and the notice requirements established in Paragraph A(1) and the notification requirements established in Subsection E are met.
I. Any employee who submits written notice of the intent to return to a position of employment in accordance with the provisions of this law, shall be entitled to complete any training program that was applicable to his former position of employment during his period of service in the uniformed services.
J. Any employee who is restored to or employed in a position in accordance with the provisions of this Section shall not be discharged from such position without cause within one year after such restoration or reemployment.
K. Notwithstanding any provision of law to the contrary, an employee shall be reinstated to his former position as a teacher immediately upon application and shall be entitled to receive that compensation which he would have received if he would have been employed on a nine-month basis and had prorated his salary over twelve months. The employee shall be reinstated prior to the end of the twelve-month period.
L. A person who is reemployed under this Part is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.
Acts 1991, 1st E.S., No. 6, §1, eff. April 17, 1991; Acts 1991, No. 663, §1, eff. July 17, 1991; Acts 1995, No. 716, §1, eff. June 21, 1995; Acts 2005, No. 144, §1.