Purpose

The purpose of this policy is to establish formal direction, rules, and procedures to permit employees to take military leave, with or without pay, for active duty in the armed services of the United States, and to permit employees who are former and inactive members of the armed services, or current members of the reserve forces of any of the United States' armed services, or of the Commonwealth's militia, or the National Defense Executive Reserve to take military leave in accordance with Federal and State law. This policy also provides continued salary for employees in the Commonwealth's Militia called up by the Governor to respond to natural or man-made disasters.

Authority

Virginia Code Section 23.1-1301, as amended, grants authority to the Board of Visitors to make rules and policies concerning institution. Section 7.01(a)(6) of the Board of Visitors Bylaws grants authority to the President to implement the policies and procedures of the Board relating to University operations.

DHRM Policy #4.50 - Military Leave

United Stated Department of Labor: Uniformed Services Employment and Reemployment Rights Act

Definitions

Active Military Supplement - Defines project grants to include fellowships, scholarships, research grants, trainee grants, traineeships, experimental and demonstration grants, evaluation grants, survey grants, construc­tion grants, and unsolicited contractual agreements. (Available at www.cfda.gov.)

Active Military Duty (Federal) - Federally funded military duty as (a) a member of the armed forces of the United States on active duty pursuant to Title 10 of the United States Code, or (b) a member of the Virginia National Guard on active duty pursuant to either Title 10 or Title 32 of the United States Code.

Active Military Duty (State) - State-funded military duty pursuant to a call-up of the militia, including the National Guard, by the Governor of Virginia as provided by Va. Code §§ 44-75.1 and 44-78.1.

Administrative and Professional (A/P) Faculty - Employees who perform work directly related to the management of the educational and general activities of the institution, department or subdivision or whose professional positions serve the educational, research, athletic, medical, student affairs, and development functions or activities of the institution.

Classified Employee - A salaried employee whose terms and conditions of employment are subject to the Virginia Personnel Act, Code of Virginia Section 2.2-2900 et seq., as amended, and who is employed in a classified position.

Commonwealth's Militia - The militia of the Commonwealth of Virginia consists of the National Guard, which includes the Army National Guard and the Air National Guard; the Virginia State Defense Force; and the naval militia.

Fair Labor Standards Act (FLSA) - Establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments.

Federal Fiscal Year - October 1 - September 30

Military Bank Leave - Leave time that full-time employees who are members of the military reserves (MR) or National Guard (NG) may choose to bank for use during active military duty in order to remain in full pay status. The source of this leave time is annual leave hours above the carryover maximum.

Military Leave With Pay - A period of approved absence for military duty during which full State pay and benefits continue. Includes paid time granted by statute and time during which an employee has elected to apply his or her accrued leave as permitted by policy.

Military Leave Without Pay - A period of approved absence during which employees' regular pay is discontinued by the State while they are engaged in active military duty or State- or Federally-funded military training duty. (Also, LWOP-military.)

Military Training - Federally-funded training duty for members of any reserve component of the armed forces of the United States as listed above, and State-funded training duty for members of the Commonwealth's Militia and National Defense Executive Reserve.

National Defense Executive Reserve - Composed of persons of recognized expertise from various segments of the private sector and from government (except full-time Federal employees) for training for employment in executive positions in the Federal Government in the event of an emergency that requires such employment. (50 United States Code, Appendix Section 2160).

Teaching and Research Faculty - Employees whose work assignments primarily involve instruction, research, and scholarly activities, and who hold academic rank/titles.

USERRA - The Uniformed Services Employment and Re-employment Rights Act of 1994. Under USERRA, employees who leave work to serve in the armed forces hold certain reemployment rights as long as they comply with notification and other requirements. NOTE: State employees (for example, hourly, faculty, "at-will") not covered by this policy may have reinstatement rights under USERRA.

Wage Employee - A non-salaried employee who receives pay for hours worked and is not covered by the provisions of the Virginia Personnel Act. Wage employees are sometimes referred to as hourly employees. Wage employees have no guarantee of employment for a particular term or a particular daily or weekly work schedule; they serve at the will of the designated hiring official and may be terminated at any time.

Scope

This policy applies to all employees of the University, including all staff, administrators, faculty, full- or part-time, and classified or non-classified persons who are paid by the University. This policy is not applicable to wage or adjunct employee classifications.

An employee is eligible for Military Leave, during state employment, when they

1. are called to required military training,
2. are called into state or federal active military service,
3. are called up by the Governor under §§ 44-75.1 and 44-78.1 of the Code of Virginia to respond to natural or man-made disasters, or
4. voluntarily enter active service in any branch of the United States military, the Commonwealth's Militia, or the National Defense Executive Reserve.

Policy Statement

This policy provides guidelines for granting paid and/or unpaid leave to employees eligible for military leave during State employment. This includes all full-time employee classifications such as classified staff, administrative and professional faculty, and teaching and research faculty.

Military leave may be with pay or without pay.

Eligibility Criteria for Military Leave With Pay

1. Current members of the armed services, including members of the reserve forces of any of the United States' armed services, who are called to:
   

2. Former members of the armed services who are called to report for active duty.
   

3. Members of the Commonwealth's militia who are engaged in training duty or State active duty approved by the Governor or designee.
   

4. Members of the National Defense Executive Reserve who are senior executives called to service with the Federal government or engaged in training approved by the Governor or designee.
   

5. Employees do not lose seniority or accrued leave balances when taking these 15 days of military leave with pay.
   

Eligibility Criteria for Military Leave Without Pay

1. Active Military Supplement - Pursuant to Executive Order 44 (2003), employees called to active-duty military service in the armed forces of the United States and on military leave without pay whose gross military salary plus allowances is less than their base state salary are eligible to receive the Active Military Supplement. Employees need to provide Old Dominion University's Department of Human Resource with a military Leave and Earnings Statement (LES) when they begin active duty and when any change in their salary or allowances occurs so the University can confirm their eligibility for the supplement and can calculate the amount due.

2. Exempt Employees - Fair Labor Standards Act exempt employees' salaries may not be reduced as a result of a partial workweek absence on military leave. However, the employees' military pay for the week may count toward their salaries. Thus, if an employee's military pay is equal to or higher than the employee's weekly salary, the University is not required to pay the employee any salary for that week. If an employee's military pay is less than their salary, but the military pay is supplemented in accordance with Executive Order 44 (2003), then the University's obligation to the employee for the partial workweek will have been met.

3. Layoff - Employees on Leave Without Pay-Layoff are considered to be on leave from state service. Thus, if they are called to active military duty during layoff, they will be placed on Military Leave Without Pay. Employees will retain layoff benefits until released from active military duty. At that point, they will return to LWOP-Layoff status and continue for the remaining period of layoff for which the employee was eligible prior to LWOP-military.

4. Temporary Workforce Reduction - An employee who remains on the payroll by using accrued leave while on active military duty may be subject to Temporary Work Force Reduction (TWFR) if their position would otherwise have been affected by the reduction. Unpaid leave will be substituted for paid leave for the time affected by the TWFR. An employee on Military Leave Without Pay is generally not subject to TWFR.

5. Employees shall be granted military leave without pay for the duty indicated in their military orders that is not covered by military leave with pay or by the employee's use of his or her annual, military bank, compensatory, overtime, or family and personal leave balances.

Employee Responsibilities

1. Employees shall provide copies of orders documenting dates and types of required military training, physical examination, or active duty from appropriate military officials, including discharge documentation. Employees must also provide other required documentation as requested by the Department of Human Resources.

2. Employees must request military leave, indicating the type of military leave for which they are applying (e.g., they must indicate leave with or without pay, designate the type of leave used to remain in paid status, and/or include whether and how any accrued leave is to be applied).

3. Employees requesting to use military bank leave must certify that they were eligible to accrue military bank leave by their membership in the National Guard or the Military Reserves.

4. In case of emergency orders to military service, employees must notify supervisors as soon as possible, and complete leave request forms when feasible, or upon return.

5. Employees seeking reinstatement to State employment after a period of active military duty must make their requests in accordance with USERRA and other requirements given in this policy.

   Requests for reinstatement must be made either orally or in writing. They should state that the person is seeking reinstatement to their former employment upon return from military service. These requests should include certificates or release orders that confirm satisfactory completion of military service and provide the date of discharge.

NOTE: The State is not obligated to reinstate an employee who has not satisfactorily completed military service or training. Eligibility for reinstatement must be evaluated on an individual basis, taking into consideration the employee's military record and work history with the State. Additionally, an employee may not return to their position prior to the date of discharge shown on the official discharge documents.

Procedures

1. Eligible employees shall be granted up to 15 workdays (120 hours) of paid military leave per Federal fiscal year.
   

2. A workday shall mean 1/260 of the total working hours an employee is scheduled to work during the entire Federal fiscal year.

3. State service continues to accumulate while an employee is on military leave.

4. Employees do not lose seniority or accrued leave balances when taking these 15 days of military leave with pay.

5. An employee on leave without pay, including military leave without pay, does not have access to the 15 days of paid military leave available to employees who go on military leave from an active working status. Access is restored when the employee returns from leave without pay status.

6. Employees are paid up to 8 hours per Federal fiscal year for pre-induction and other physical examinations required for military service in addition to the 120 hours discussed above. The leave record should show "military leave with pay-physical."

7. Military Leave for Emergency Service

   Employees are paid up to 8 hours per Federal fiscal year for pre-induction and other physical examinations required for military service in addition to the 120 hours discussed above. The leave record should show "military leave with pay-physical."

8. Benefits During Military Leave With Pay

   1. Employees' benefits are not affected during military leave with pay.
      

   2. Employees continue to accrue annual leave and traditional sick leave for 90 calendar days.
      

   3. Virginia Short Term Disability Program (VSDP) leave is credited if the employee is on paid leave on January 10, and VSDP balances are retained during leave with pay; unused leave (sick, family and personal) is lost on January 9.

   4. Retirement contributions continue.
      

   5. The State contribution to health insurance premiums continues.
      

   6. Life insurance coverage is not changed.
      

9. Benefits During Military Leave Without Pay

   1. Employees do not accrue annual leave when they are in a leave without pay status.

   2. Employees will not accrue traditional sick leave when in leave without pay status. See Policy DHRM Policy 4.55, Traditional Sick Leave.

   3. Unused balances of VSDP sick leave and of family and personal leave lapse if the employee remains on military leave on January 9. New balances are credited in accordance with VSDP policy when the employee returns to state service.

   4. Health insurance coverage will continue through the end of the month in which the leave without pay begins. If the employee returns from leave the following month and works at least one-half of the workdays in the month, coverage will not lapse.

      1. Coverage for Active Military Duty/Leave Without Pay for more than 14 days: Employees called to active military duty whose active State employee benefits will lapse due to being placed on military leave without pay will be offered benefits for themselves and their covered dependents in extended coverage for up to 24 months. These employees and dependents are eligible for Federal health benefits. However, they will be allowed to continue health benefits with the State program and upon election of extended coverage will receive the State contribution for up to 24 months without an administrative fee. Beyond the 24-month period, conversion to non-group coverage is available.

      2. All health care premiums are deducted on a pre-tax basis. Premiums for the month in which leave without pay begins may be collected either by a lump sum pre-tax payroll deduction or on an after-tax basis by personal check.

      3. Flexible Spending Account
         

      Medical Reimbursement Accounts - Participating employees who are called to active duty may continue participation through the end of the plan year. The participant's elected contributions for the period of leave must be collected either by a lump sum pre-tax payroll deduction, or monthly on an after-tax basis by personal check.

      Alternatively, within 31 days of taking an unpaid leave of absence, the employee may elect to discontinue participation in the medical reimbursement account. Coverage will cease on the first day of the month after the employee begins an unpaid military leave of absence. Elected contributions for the final month of coverage may be collected on a pre-tax basis by lump sum deduction or on an after-tax basis by personal check. The employee can be reimbursed for expenses incurred through the end of the final month of coverage.

      Dependent Care Accounts - Coverage will cease on the first day of the month after the employee begins an unpaid military leave of absence.

   5. The State shall continue to provide basic group life insurance coverage at no cost to the employee for a maximum of 24 months from the date military leave without pay begins. After 24 months, an employee may convert to an individual life insurance policy and pay the entire premium.

   6. Employees will not be granted or paid compensatory leave for holidays occurring during periods of military leave without pay.

   7. If employees earn any pay in the months in which military leave without pay begins or ends, the University shall make retirement contributions based on the employees' full monthly base salaries. Contributions will be discontinued for the remaining time employees are on military leave without pay.

10. Options for Using Accrued Leave at the Beginning of Military Leave

    1. In addition to the 15 days for training or active duty plus 8 hours for a physical examination, employees on military leave may remain in paid status by using all or part of their accrued leave balances (except sick leave).

    2. Military Bank Leave - A full-time State employee who is a member of the organized reserve forces of any of the armed services of the United States or of the Virginia National Guard may carry forward all excess accrued annual leave hours to be retained as military bank leave. When the yearly carry-over adjustments to annual leave are made on January 10 of each year, the amount of leave in excess of the allowable carry-over amount shall be added to the employee's military bank category if that employee has a Military Reserve or National Guard designation on record and has authorized accrual of military bank leave.

       1. Hours over the normal carryover limits retained as military bank leave may be used only during active military duty as provided by Code of Virginia § 2.2-2903.1.

       2. Military bank leave may not be paid out or credited in any other form to the employee. It is either used during active military duty or it lapses upon separation, retirement, or death.

       3. An eligible full-time employee whose excess annual leave has been retained as military bank leave may apply any such banked leave at the beginning of active military duty. Employees beginning active military duty should indicate their request to use military bank leave, and other accrued leave, on their Military Leave Worksheet.

       4. Military bank leave may be applied to the period of absence due to active military duty in the same way that other accrued leave is applied. Regular payroll deductions continue. Sporadic use of military bank leave is not permitted.

       5. An employee on active military duty may choose to retain all or part of their military bank leave. The balance will remain available for use only during future periods of active military duty.

    3. Annual, compensatory, and overtime leave may be used as follows:
       

       1. applied to the period of absence due to military service;
          

       2. paid as allowed by policy at the time of placement on leave without pay; and/or
          

       3. retained until reinstatement from military leave without pay. Retained compensatory leave will be available for use for one year following reinstatement.
          

       Employees may choose to be paid for some or all of their accrued balances and may elect to receive payment either (a) in a lump sum or (b) on the University's regular payroll schedule.

       Overtime leave balances are paid at the employee's regular rate of pay or the average rate received by the employee during the last three years of employment, whichever is higher.

       Employees who choose to use some or all of their accrued balances to remain in active status must use the leave consecutively. Sporadic use of paid leave is not permitted.

    4. Traditional Sick Leave - Employees participating in the traditional sick Leave program under Policy No. 4.55, Traditional Sick Leave, have these options for their accrued sick leave balances:

       1. Employees with less than five years of continuous state service at the beginning of military leave without pay retain their sick leave balances, which are reactivated upon reinstatement to state service.

       2. Employees with five or more years of continuous state service at the beginning of military leave without pay may:

          1. retain their entire sick leave balances to be reactivated upon reinstatement to state service, or
             

          2. be paid for 25% of their sick leave balances up to $5,000. If paid, the remaining 75% of the balance lapses and will not be restored upon their reinstatement to state service.
             

    5. VSDP Leave

       1. At the employee's option, family and personal leave balances under VSDP may be applied to the period of absence due to military service. Family and personal leave balances not used will lapse on January 9 and will be credited in accordance with VSDP policy when the employee returns to State service.

       2. Any unused balance of VSDP sick leave held at the beginning of military leave without pay will be retained pending the employee's return. If the employee remains on leave without pay at the end of the leave year (January 9), these balances will expire. When the employee returns to State service, new balances are provided in accordance with VSDP policy.

11. Reinstatement to State Service

    1. Eligibility for Reinstatement- Reemployment rights extend to persons who have been absent from a position of employment because of performing duty in the armed services. The cumulative length of service that causes a person's absences from a position may not exceed five years. Eligibility may be extended for up to two additional years only when:

       1. extension of active military service is requested by and for the convenience of the Federal government;
          

       2. a longer State active-duty period is fixed by the Governor; or
          

       3. hospitalization resulting from active duty continues after discharge.
          

    2. Exceptions - USERRA lists eight categories of service that are exempt from the five-year limitation. These include:

       1. service to complete an initial period of obligated service;
          

       2. service from which the employee through no fault of their own cannot obtain a release within the five-year limit (e.g., a service member on deployment at sea when the five-year limitation expires);
          

       3. required training for reservists and National Guard members;
          

       4. service under an involuntary order for active duty during domestic emergency or national security related situations;
          

       5. service on active duty because of a war or national emergency declared by the President or Congress (other than training);
          

       6. active duty by volunteers supporting "operational missions" for which Reservists have been ordered to active duty without their consent (other than for training);
          

       7. service by volunteers ordered to active duty in support of a "critical mission or requirement" in times other than war or national emergency and when no involuntary call up is in effect; and
          

       8. federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invastion, or to execute the laws of the United States.
          

    3. Employees must request reinstatement within 90 calendar days of the day after release from active duty. Employees remain on military leave without pay during the permitted period of time between discharge from active military duty and reinstatement to active state employment.

       Disability incurred or aggravated. The reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing because of a disability incurred or aggravated during the period of military service. This 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-year period impossible or unreasonable.

    4. Effective Date of Reinstatement - Employees are to be reinstated within a reasonable period of time after notification, normally considered to be within five to ten workdays. However, operational circumstances may require longer periods.

    5. Escalator Principle - Employees are qualified for pre-service positions or for positions to which they are entitled under the "escalator principle." That is, they will step back on the seniority escalator at the salary they would have held had they kept their positions continuously during military service. The purpose of the reemployment statute is to place veterans in the positions they would have attained if they had remained continuously employed, not a better position or a worse position.

    6. Same or comparable position - Employees will be reinstated to their previous positions or to comparable positions in terms of pay, status, and location when they meet the minimum qualifications for the position. If employees no longer meet the minimum qualifications of their former positions because of changes in job duties, they must meet the changed requirements within a reasonable time after re-employment or be offered positions requiring skills comparable to those required in former jobs with like seniority, status, pay, and location.

       Before being placed in other positions, employees should be offered training to increase their ability to perform the jobs, if such training would have been available to them if no military service had occurred.

    7. Change in Departmental Business Needs - When a department's circumstances have changed, thereby making it impossible or unreasonable to reinstate the employee, it may take one of the following actions.

       1. Comparable position available - If employees' formerly-held positions have been abolished, they shall be placed in positions comparable in pay band and pay to those previously held. NOTE: If the nature and level of duties of a current position are substantially similar to those of the returning employee's pre-service position, a change of title does not justify the conclusion that the pre-service position has been abolished.

       2. Comparable position not available - If comparable positions are not available, employees shall be considered affected by a reduction in force, and the provisions of Policy. 1.30, Layoff, shall apply.

    8. Military Service Disability - When employees become disabled during military service and cannot perform duties of their previous positions and reasonable accommodations are not possible without undue hardship to the department, efforts must be made to place them in the most closely comparable positions for which they qualify with no loss of seniority.

12. Leave Benefits Upon Reinstatement of Services

    1. Annual Leave - Employees' periods of military leave without pay will be included as State service when determining their rates for accruing annual leave. If an employee chooses to receive pay for accrued annual leave when going on military leave without pay and then returns to State service within 180 days, they may buy back the annual leave for which they were paid by reimbursing the full amount received.

    2. Compensatory and Overtime Leave (if applicable) - Retained compensatory leave will be available for use during the year following reinstatement. Any unused compensatory leave retained from before military leave will expire one year after reinstatement. Retained overtime leave does not expire and will remain until the employee uses the time or separates from State employment and receives payment.

    3. Traditional Sick Leave (if applicable) - An employee who returns from military leave to State service within 180 days may buy back any sick leave for which they were paid by reimbursing the full amount received. The remaining 75% that could not be paid will be restored when the purchase is complete. Employees who repurchase sick leave upon return do not have to serve another five-year eligibility period for payment of sick leave upon separation.

    4. VSDP Leave - If the employee is reinstated within the same leave year (January 10-January 9), the VSDP leave balances they had when called to duty will be reactivated. If reinstatement occurs in a new leave year, the employee will receive a new allotment of sick leave and family and personal leave based on months of service, as described in Policy 4.57, Virginia Sickness and Disability Program.

    5. FMLA - Time spent on military leave without pay counts toward an employee's eligibility for FMLA.

13. Health and Related Benefits Upon Reinstatement

    1. When the employee returns to State service, the employee may make health benefits elections to enroll in a plan and select a membership level if the employee was gone for more than 30 days.

    2. If the employee returning from military leave without pay was gone less than 30 days, the employee must return to the same plan and membership level in which they were enrolled prior to the leave. Premiums will be deducted on a pre-tax basis. Benefits coverage will become effective either on the first day of the month of their reinstatement to active State employment, or on the first day of the month following the date of his or her reinstatement to active State employment, provided that the employee submits the appropriate paperwork within 31 days of reinstatement from military leave without pay.

    3. Flexible Reimbursement Account

       1. If the employee returning from military leave without pay was gone less than 30 days, the employee must return to the reimbursement account(s) elections they had prior to the leave.

       2. If the employee returning from military leave without pay was gone more than 30 days, the employee may make new elections for both the Medical and Dependent Care Accounts provided that the employee submits the appropriate paperwork within 31 days of reinstatement from military leave without pay. The account(s) will be effective the first of the month following the receipt of the completed paperwork.

    4. Life Insurance - When an employee is reinstated to active State employment following military leave without pay, the employee's basic group life insurance coverage will continue or resume, as appropriate.

    5. Retirement Credit - Employees reinstated to State service after active military duty are entitled to retirement service credit for periods of military leave without pay as stipulated in Virginia Retirement System guidelines.

    6. Probationary Period - Probationary employees who take military leave with or without pay for more than 14 calendar days will have their probationary periods extended for the length of the leave, including the initial 14 days.

    7. Compensation - Employees returning to their previous positions from military leave shall be reinstated at the same salary as when they were placed on military leave status, or the salary they would have attained had they kept their positions continuously during military service (escalator principle) as follows:

       1. Any salary changes that affected all other University employees who occupy positions in the employees' roles (such as re-banding, general salary increases, or role changes) must be applied to the returning employees. (See Policy 3.05, Compensation.)

       2. Applicable performance increases are to be applied as if employees' service continued uninterrupted during the period of military leave. (See Policy 1.40, Performance Planning and Evaluation.)

       3. When employees return to positions other than those held prior to taking military leave, their salaries shall be determined by the applicable policies.

    Employees are responsible for ensuring that all leave is accurately reported in Web Time Entry (WTE). Supervisors are responsible for ensuring that all employees' leave is accurately reported and approved in WTE.
    

Records Retention

Applicable records must be retained and then destroyed in accordance with the Commonwealth's Records Retention Schedules.

Responsible Officer

Assistant Vice President for Human Resources and Strategic Initiatives

Related Information

DHRM Policy #3.10- Compensatory Leave

DHRM Policy #3.15- Overtime Leave

DHRM Policy #4.10- Annual Leave

DHRM Policy #4.45- Leave Without Pay - Conditional/Unconditional

DHRM Policy #4.55- Traditional Sick Leave

DHRM Policy #4.57- Virginia Sickness and Disability Program

University Policy 6301 - Bone Marrow and Organ Donation Leave

University Policy 6302 - Civil and Administrative Leave for Administrative and Professional Faculty, Classified Staff, and Wage Employees

University Policy 6303 - Emergency Disaster Leave

University Policy 6305 - School Assistance and Volunteer Service Leave

University Policy 6306 - Immediate Recognition