MILITARY LEAVE

            In an attempt to ameliorate the financial impact that prolonged military service imposes on public employees and their families, the Legislature passed and Governor Wise signed, an amendment to W. Va. Code § 15-1F-1, that provides additional military leave benefits to eligible employees who are members of the Armed Forces Reserves or West Virginia National Guard and who are ordered or called to active duty by properly designated federal authority. Further, in recognition of the value of health and life insurance benefits to public employees and their families and the financial burden of continuing such coverage with prolonged active military service, Governor Wise also issued Executive Order No. 19-01. The Order provides that such eligible employees referenced in Code § 15-1F-1, who are currently covered by the Public Employees Insurance Agency, may continue health and life insurance benefits for themselves and their dependents, without additional cost to the employee.

            Prior to the enactment of this recent amendment to the military leave statute, the Code provided two separate categories of paid military leave. The first category previously provided, and continues to provide, thirty (30) days of paid leave when an eligible employee is ordered by properly designated authority to participate in drills, parades, or other duty during business hours, or for field training, or other active service of the State. The second category provides thirty (30) days of paid military leave when an eligible employee is ordered or called to active duty by the President of the United States. The two distinct and separate types of paid leave were for different types of military service and they could not be combined. That is, they could not be used interchangeably or substituted for one another when one or the other leave is exhausted.

            The October 26, 2001, statutory amendment to § 15-1F-1, does not substantively alter the first category of thirty (30) days of paid military leave [subsection (a)]. Additionally, the amendment continues to provide thirty (30) days of paid military leave to all eligible employees of the State who are members of the Armed Forces Reserves or National Guard who are ordered or called to active duty; however, the following are noteworthy changes to the second category of leave [subsection (b)] which impact the first category of leave [subsection (a)] which include:

•          Express retroactivity is provided by the language " Effective the eleventh day of September two thousand one. . . ."

•          The requirement of being so ordered or called to active duty by the President of the United States has been amended to read ". . . who are ordered or called to active duty by the properly designated federal authority. . . ." (Properly designated federal authority includes, but is not limited to: the President, Service Secretaries, any other individual listed in the numerous sections of 10 U.S.C. and 32 U.S.C.)

•          Employees are permitted to combine the two categories of paid leave if they are ordered or called to active duty, subject to limitations provided in subsection (b), which states ". . . shall be entitled to add the number of unused days from that calendar year to the thirty working days granted by this subsection up to a maximum of sixty days for a single call to active duty: Provided, however, that none of the unused days of military leave of absence granted by subsection (a) may be carried over and used in the next calendar year."

            It is important to remember that, as provided by the amendment, none of the unused days from subsection (a) may be carried forward and used in Calendar Year 2002. An eligible employee who was activated by properly designated federal authority in calendar year 2001, and who remains on active duty status in calendar year 2002, is not eligible for additional paid leave from subsection (a) until he or she is released from active duty.

Example 1:    In calendar year 2001, a reservist uses only twenty (20) working days of paid military leave granted under subsection (a). The reservist is later activated by properly designated federal authority on December 16, 2001 and continues on active duty through the end of the year. Based on a Monday through Friday work schedule, excluding holidays, there would be eight (8) working days remaining in the calendar year. Although the reservist has ten (10) unused days remaining under subsection (a), he or she may only use the eight (8) available days. The remaining two days are lost and may not be carried over in the next calendar year (2002). Assuming the period of activation continues, the reservist will be paid in 2002 for the thirty (30) working days under subsection (b), for a total of thirty-eight (38) working days during the period of activation by properly designated federal authority. When the reservists returns to employment, thirty (30) days of paid leave under subsection (a) will be available for that calendar year.

            We anticipate numerous and more complicated scenarios than presented in the example given, but rather than try to anticipate each one and provide examples, we believe it more appropriate to answer specific questions on a case-by-case basis. Please direct any questions you may have regarding military leave entitlement to the Division of Personnel at (304) 558-3950, Extension 511.

            Prior to Executive Order No. 19-01, eligible employees could continue to participate in the insurance program offered through the Public Employees Insurance Agency; however, they were required to pay the one-hundred per cent (100 %) of the premium costs, that is, both the employee and employer shares. Recognizing the financial burden this would impose on affected employees, Governor Wise issued Executive Order No. 19-01, which provides, in summary, that eligible employees of the State, or its subdivisions, or municipalities:

•          who are members of a reserve component of the United States Armed Forces, including the West Virginia National Guard;

•          who are currently covered by the Public Employees Insurance Agency, and

•          who are mobilized to active military duty by the President in response to the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon:

May continue health and optional life insurance benefits by paying their proportionate, employee share of the monthly premium.

Employers shall continue to pay the pre-mobilization, proportionate employer share of health and basic life insurance premiums.

            It is important to understand that employees of the State, and its subdivisions or municipalities who are activated by order of the President of the United States or other properly designated federal authority, are also eligible to participate in the federal military health care system, Tricare. Information on Tricare is available from the military Health Benefits Advisor (or ombudsman) at any military medical treatment facility. Additionally, all Tricare regions have toll-free information telephone lines. These numbers can be accessed at www.tricare.osd.mil.

            In addition to the provisions of Code § 15-1F-1 and Executive Order No. 19-01, all employers must comply with the provisions of the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Generally, the USERRA requires:

•          the employer to grant up to five years of unpaid leave to employees who are members of or enlist in the military;

•          that such employees be re-employed if they make application for re-employment within certain deadlines specified in USERRA;

•          employers to make the same contributions to the employee’s retirement plan that you would have made if the employee had not been absent on military leave;

•          that such employees may, but are not required to make missed retirement contributions once they return to employment and have up to three times the period of service to make the contributions (but not to exceed five years);

•          that such employees continue to accrue tenure during unpaid military leave; however, they do not continue to accrue annual and sick leave, and

•          that such employees may choose to use accrued annual leave during military leave; however, they may not be required to exhaust accrued annual leave.

            Due to the complexity of this federal statute, employers are encouraged to contact the Division of Personnel (558-3950, Extension 511) or the Adjutant General’s Office (Lt. Col. Michael Barber, 561-6323) for more specific information or to discuss situations on a case-by-case basis. You should direct any questions concerning State insurance matters to the Public Employees Insurance Agency at 558-6244 or toll free at 888-680-7342 and retirement contribution questions to the Consolidated Public Retirement Board at 558-3570 or toll free at 800-654-4406 (within West Virginia).