POLICY 06:07:04

MILITARY LEAVE

This policy is consistent with Tennessee Board of Regents Policy No. 5:01:01:04

Purpose

The purpose of this policy is to establish the criteria and process regarding military leave for
employees at Pellissippi State Community College.

Definitions

Military Duty – means
- training and service performed by an inductee, enlistee, or reservist or any entrant
  into a temporary component of the armed forces for the United States; and
- time spent in reporting for and returning from such training and service, or if a
  rejection occurs, from the place of reporting for such training and service.
Military Duty also includes active duty training as a reservist in the armed forces of the
United States or as a member of the national guard of the United States when the call is
for training only.
Qualified – means that the employee has the ability to perform the essential tasks of the
position. The employee’s inability to perform one or more non-essential tasks of a
position does not disqualify them.

Policy

Introduction
1. All employees who are members of any reserve component of the armed forces of
  the United States or of the Tennessee National Guard or the U.S. Air Force
  Auxiliary Civil Air Patrol shall be entitled to a leave of absence from their duties
  for all periods of military service during which they are engaged in the
  performance of duty or training in the service of this State, or of the United States,
  under competent orders as stipulated in U.S.C. Title 38, § 4311-4318 and T.C.A.
  § 8-33-101 through 8-33-109, T.C.A. § 58-1-106 and T.C.A. § 42-7-102.
2. An employee or applicant for employment, who performs, applies to perform, or
  has an obligation to serve in a uniformed service shall not, on that basis, be denied
  employment or reemployment or be discriminated or retaliated against for such
  service or application for service in any manner.
Military Leave with Pay
1. Each employee who is on military leave shall be paid their salary or compensation
  for a period, or periods, not exceeding twenty (20) working days in any one (1)
  calendar year.
2. Holidays and scheduled off duty days do not count toward the twenty (20)
  workdays allowed.
3. During the 20 day period the employee continues to earn regular pay, service
  credit, and applicable annual and/or sick leave accruals. All other rights and
  benefits continue to which the employee is otherwise entitled.
4. A regular employee who has exhausted the 20 days of paid leave in any one
  calendar year may elect to use accrued annual leave. In addition, a regular
  employee may use accrued sick leave if the employee provides proof to the
  president or designee that they were sick while serving in the armed forces.
5. An employee on terminal leave is entitled to use his/her twenty (20) days of paid
  military leave with no loss of rights or benefits to which the employee is
  otherwise entitled.
6. Employees must furnish certification from competent military authority of the
  dates active duty was actually performed.
7. Longevity credit will not be affected.
8. Employees are entitled to additional paid leave if called to active duty pursuant to
  T.C.A. § 58-1-106
Military Leave with Partial Pay
1. Military Leave with Partial Pay shall be granted to all employees who are called
  to active duty by the President of the United States or under the authority of a
  Governor as members of the Reserve or National Guard as provided by applicable
  Tennessee Executive Orders.
2. Partial pay shall be the difference between the employee’s regular state salary and
  the employee’s fulltime military salary.
3. Affected employees shall remain state employees while on such active duty for
  the purpose of;
  1. Accruing sick leave;
  2. Accruing annual leave;
  3. Accruing longevity pay which shall continue to be paid to the employee
    annually; and
  4. Accruing retirement time.
    1. Earn-able compensation and retirement benefits shall be not
      increased or decreased by any partial payment made pursuant to
      this section.
    2. The period of absence while on military duty shall count toward
      the minimum twelve (12) months and 1,250 hours required that an
      employee work for eligibility for leave under the Family Medical
      Leave Act.
4. Current Executive Orders 4, 9, 12, 17, 20, 26 and 40 relating to Military Leave
  with Partial Pay can be found at: http://www.tn.gov/sos/pub/execorders/index.htm
Military Leave Without Pay
1. Military leave without pay shall be granted to all employees for periods of active
  duty or training activity with the armed forces of the United States, its reserve
  components or the Tennessee National Guard for periods beyond the twenty (20)
  days of paid leave in a calendar year.
2. Military leave without pay shall be granted to employees voluntarily entering the
  regular components of the Armed Forces of the United States.
3. During a period of unpaid military leave, a regular employee retains all
  accumulated annual and/or sick leave.
4. Longevity credit will not be affected.
Reemployment Rights
1. With exceptions noted in the regulations, an employee may perform service in the
  uniformed services for a cumulative period of up to five (5) years and retain
  reemployment rights. (20 C.F.R. 1002.99 – 1002.103)
2. An employee leaving for military service must give the College advance notice of
  the intent to leave the employment position for uniformed service, unless giving
  such notice is prevented by military necessity or is otherwise impossible or
  unreasonable under all the circumstances. The notice may be either verbal or
  written, may be informal, and does not need to follow any particular format. (20
  C.F.R. 1002.85 – 1002.86)
3. An employee leaving for military service cannot be required to decide at that time
  whether they intend to return to the College but may defer that decision until after
  completing the period of service. An employee who indicates intent not to seek
  reemployment following military service may change their mind and not forfeit
  reemployment rights. (20 C.F.R. 1002.88)
4. Reemployment must occur promptly, no later than within two weeks of the
  employee’s application for reemployment.
5. An employee on military leave of absence who is relieved or discharged from
  military duty under circumstances other than dishonorable shall be entitled to
  reemployment rights as follows:
  1. If the employee served less than 31 days, or was absent for a period of any
    length for the purpose of an examination to determine their fitness to
    perform service, the employee must report back to the College 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 (8) hours after a period allowing for safe
    transportation from the place of that service to the employee’s residence.
    1. For example, if the employee completes a period of service and
      travel home, arriving at ten o’clock in the evening, they cannot be
      required to report to the College until the beginning of the next full
      regularly-scheduled work period that begins at least eight hours
      after arriving home, i.e., no earlier than six o’clock the next
      morning.
    2. If it is impossible or unreasonable for the employee to report
      within such time period through no fault of their own, they must
      report to the College as soon as possible after the expiration of the
      eight-hour period.
  2. If the employee served between 31 and 180 days and makes an oral or
    written request for reemployment no more than 14 days after completing
    service.
  3. If the employee served more than 180 days and makes an oral or written
    request for reemployment no more than 90 days after completing service.
    1. Source: Uniformed Services Employment and Reemployment
      Rights Act (USERRA) of 1994, amended 1/18/06 (20 C.F.R.
      1102.115)
6. An injured employee must comply with the notification procedures determined by
  the length of service, after the time period required for the person’s recovery. The
  recovery period may not exceed two (2) years unless circumstances beyond the
  person’s control make notification within the two-year period impossible or
  unreasonable. (20 C.F.R. 1002.116)
7. An employee who fails to report or apply for reemployment within the timeframes
  described above does not automatically forfeit entitlement to reemployment, but
  will be subject to the System’s policy regarding unauthorized absence from work.(
  20 C.F.R. 1002.117)
8. The president or designee may request that employees applying for reemployment
  submit documentation to substantiate that:
  1. The employee’s application is timely; and
  2. The employee’s entitlement to reemployment has not been terminated due
    to dishonorable or bad conduct discharges;
  3. The employee has been fully discharged to return to employment.
9. If the employee fails to provide requested documentation;
  1. It shall not be a basis for denying reemployment if the documentation does
    not exist or is not readily available at the time requested by the College;
  2. The College may terminate the employee and any rights or benefits
    provided under this policy should documentation become available that
    establishes the employee does not meet one or more of the requirements in
    Section V.E. above.
Reemployment to Position
1. An employee who was released under conditions other than dishonorable shall be
  eligible for reemployment as follows:
  1. As a general rule, the employee is entitled to reemployment in the job
    position that they would have attained with reasonable certainty if not for
    the absence due to uniformed service. This position is known as the
    escalator position. (20 C.F.R. 1002.191)
  2. Once the escalator position is determined, other factors and elements may
    have to be considered to determine the appropriate reemployment position.
    This may include the employee’s length of service, qualifications, and
    disability, if any, as well as seniority, status, and rate of pay that the
    employee would ordinarily have attained in that position given their job
    history, including prospects for future earnings and advancement. (20
    C.F.R. 1002.192-193)
  3. If an opportunity for promotion or eligibility for promotion requiring a
    skills test was missed, the employee will receive a reasonable amount of
    time to adjust to the employment position prior to the skills test being
    administered. (20 C.F.R. 1002.192-193)
  4. The USERRA does not prohibit lawful adverse job consequences that
    result from the employee’s restoration on the seniority ladder. (20 C.F.R.
    1002.194)
  5. If the employee’s period of service was less than 91 days, the employee is
    re-employed in the escalator position. If the employee is not qualified for
    the escalator position, and after reasonable efforts by the College, remains
    not qualified, the employee will be employed in the position they were
    employed on the date that the period of service began. If the employee is
    not qualified to perform either the escalator position or the pre-service
    position, after reasonable efforts by the College, the employee will be re
    employed in any other position that is the nearest approximation first to
    the escalator position, and then to the pre-service position. In all instances,
    the employee must be qualified to perform the duties of this position and
    the College must make reasonable efforts to help the employee become
    qualified to perform the duties of the position (20 C.F.R. 1002.196)
  6. If the employee’s period of service was more than 91 days, the employee
    is re-employed in the escalator position, or a like position. If the employee
    is not qualified for the escalator position or the like position, and after
    reasonable efforts by the employer, remains not qualified, the employee
    will be employed in the position he or she was employed on the date that
    the period of service began, or a like position. If the employee is not
    qualified for any of the above referenced positions, the employee will be
    re-employed in any other position that is the nearest approximation first to
    the escalator position, and then to the pre-service position. In all instances,
    the employee must be qualified to perform the duties of this position and
    the College must make reasonable efforts to help the employee become
    qualified to perform the duties of the position (20 C.F.R. 1002.197)
  7. Efforts required of the College to help the employee become qualified for
    the reemployment position(s) must be reasonable.
    1. Pellissippi State is not required to reemploy an employee upon
      return from service if they cannot qualify for the appropriate
      reemployment position.
    2. If the employee cannot become qualified for the escalator position,
      the employee must be re-employed in a position of equivalent
      seniority, status and pay that the employee is qualified to perform
      or could reasonably become qualified to perform.
    3. If no such position exists, the employee must be placed in a job
      that is similar in terms of seniority, status and pay consistent with
      the employee’s circumstances.
    4. Whether a task is essential depends on several factors, and these
      factors include but are not limited to:
      1. The College’s judgment as to which functions are essential;
      2. Written job descriptions developed before the hiring
        process begins;
      3. The amount of time on the job spent performing the
        function;
      4. The consequences of not requiring the individual to
        perform the function;
      5. The terms of a collective bargaining agreement;
      6. The work experience of past incumbents in the job; and/or
      7. The current work experience of incumbents in similar jobs.
    5. Only after the College makes reasonable efforts, as defined in (20
      C.F.R. 1002.5(i), may it determine that the employee is not
      qualified for the reemployment position. These reasonable efforts
      will be made at no cost to the employee. Source: 20 C.F.R.
      1002.198
  8. Consideration of seniority in re-employment decisions is limited to
    situations involving re-employment following a period of documented
    military leave. Although provided for by the state military leave statute,
    “seniority” is not a factor in employment decisions unrelated to military
    leave, nor is seniority (apart from longevity) recognized under TBR
    system or College policy.
2. If two or more persons are entitled to reemployment in the same position and
  more than one of them has reported for reemployment, the person who left the
  position first shall have the right to the position. The remaining employee (or
  employees) is entitled to be re-employed in a position similar to that in which the
  employee would have been employed, according to the rules that normally
  determine a reemployment position, as set out above. (20 C.F.R. 1002.199)
Retention Rights
1. If the employee’s most recent period of service in the uniformed services was
  more than 30 days, they must not be discharged except for cause:
  1. For 180 days after the employee’s date of reemployment if the employees
    most recent period of uniformed service was more than 30 days, but less
    that 181 days; or
  2. For one (1) year after the date of reemployment if the employee’s most
    recent period of uniformed service was more than 180 days.(20 C.F.R.
    1002.247)
Continuation of Benefits
1. A returning employee is entitled to the same rights and benefits they would have
  had if employment had been continuous.
  1. Insurance
    1. If elected, medical insurance coverage may be continued during a
      period of military service for the lesser of:
      1. 24 months following the beginning of the military leave;
      2. The period beginning on the date on which the employee’s
        absence begins until the day after the date on which the
        employee fails to report to work or apply for employment
        as determined in Section IV.A.; or,
      3. Unless state law or Executive Order provides for greater
        benefits.
    2. If coverage is continued, the employee will be required to pay
      premiums as follows: (a) 30 or less days of service – employee’s
      portion of the premium only or (b) more than 30 days of service–
      up to 102%. This includes the employee’s and employer’s portion
      of the premium, and 2% for administrative costs. (20 C.F.R.
      1002.166)
    3. If the employee elects to discontinue insurance coverage, a waiting
      period may not be imposed for reinstatement of coverage upon
      reemployment if a waiting period would not have been imposed
      had coverage not been terminated.
    4. SERRA allows a health plan to impose an exclusion or waiting
      period for illnesses or injuries determined by the Secretary of
      Veterans Affairs to have been incurred in, or aggravated during the
      performance of military duty. (20 C.F.R. 1002.168)
    5. Continuation of other State insurance plans will be determined by
      the State Division of Insurance Administration. Continuation of
      System plans will be in accordance with the provisions of the
      plan(s).
  2. Retirement
    1. For retirement purposes, a returning employee is considered as not
      having a break in service, except as noted in Section IV.B.
    2. Following an employee’s return to work, the college/system office
      will make retirement contributions which would have been made if
      employment had been continuous, not to exceed five (5) years.
    3. Contributions shall be made at the rate that would have been made
      if employment had been continuous.
  3. Rate of Pay
    1. If the employee is re-employed in the escalator position, the
      employee must be compensated at the rate of pay associated with
      the escalator position by taking into account any pay increases,
      differentials, step increases, merit increases or periodic increases
      that the employee would have attained with reasonable certainty
      had they remained continuously employed during the period of
      service.
    2. Any pay adjustments must be made effective as of the date it
      would have occurred had the employee’s employment not been
      interrupted by uniformed service. (20 C.F.R. 1002.236)
  4. Longevity
    1. During a period of military leave, a regular employee continues to
      earn service credit for longevity pay.
    2. Upon reemployment, and in accordance with the employer’s
      payroll procedures, the employee will receive all longevity pay that
      would have been paid if employment had been continuous. (Refer
      to Longevity Guideline TBR P-120.)
    3. Pursuant to the current Executive Order, payments must continue
      to be made annually.
  5. Leave Accrual
    1. A returning employee will begin to accrue leave at the rate(s) that
      would have been in effect if employment had been continuous.

Sources: TBR Policy 05:01:01:04; T.C.A. § 49-8-203; All Federal and State statutes, codes, acts,
rules and regulations referenced in this policy.

Adopted by TBR August 15, 1975
Revised by TBR June 25, 1976
Revised by TBR December 2, 1977
Revised by TBR June 30, 1978
Revised by TBR June 29, 1979
Revised by TBR June 26, 1981
Revised by TBR September 18, 1981
Revised by TBR September 24, 1982
Revised by TBR June 24, 1983
Revised by TBR September 30, 1983
Revised by TBR June 28, 1985
Revised by TBR June 26, 1987
Revised by TBR June 21, 1996 (Finance and Administration approval November 18, 1996)
Revised by TBR March 15, 2002 (Finance and Administration approval April 11, 2002)
Revised by TBR September 29, 2006
Revised by TBR March 28, 2008
Revised by TBR Revised December 11, 2014
Reviewed/Recommended: President’s Council, November 27, 2023
Approved: President L. Anthony Wise, Jr., November 27, 2023

Note: The provisions of this policy adopted at the August 15, 1975 meeting, became effective on
January 1, 1976, and changes in eligibility to earn leave or in the amount of leave earned for
period of service were prospective only.