Section: Personnel
Policy Number:  4-53
Policy Name:  Military Leave
Date: September 7, 1999
Revisions:  September 26, 2001; March 1, 2003; April 4, 2005; August 12, 2010

POLICY: The University recognizes the need to have a policy that addresses the employment and re-employment rights of employees who serve in the military. It is the policy of the University to comply with the Uniformed Services Employment and Reemployment Act of 1994 (USERRA) and applicable state law which protect job rights and benefits for veterans and members of the reserves. The law covers all persons serving in the Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service commissioned corps, and the reserve components of these services and the National Guard.

NOTICE: Unless precluded by military necessity or circumstances under which the giving of notice is otherwise impracticable or unreasonable, the employee (or an appropriate officer of the uniformed service in which the employee is to serve) must give as much advance written or oral notice as possible of the need for military leave.

NON-DISCRIMINATION/NON-RETALIATION: The University of Delaware shall not unlawfully discriminate in the employment of any person because of his/her past, current or future military obligations. The University also shall not take any adverse employment action against any person because he/she has exercised a right or taken an action to enforce a protection afforded under the Uniformed Services Employment and Reemployment Rights Act (the Act), or has testified, assisted or otherwise participated in a proceeding or investigation under the Act.

TYPES OF LEAVE:

  1. ENCAMPMENT

    Employees who belong to National Guard or Military Reserve units and who are required to attend annual reserve training periods or encampment programs may elect to take vacation, if sufficient earned days of vacation are available, or to take a military leave of absence.

    If military leave of absence is elected, "make-up pay" for a period not to exceed 14 consecutive days in any one calendar year will be granted for those employees who have completed 90 or more days of University service. The "makeup pay" will be the difference between military pay for the training duty (not including military allowances such as per diem) and the individual's University salary for each day of absence. To receive "makeup pay" each employee will be responsible for furnishing proof of participation in military training and a statement of government pay received.

    Procedural Requirements:

    1. An employee who has to leave his or her job for military training must provide prompt notice to his or her supervisor before leaving, unless precluded by military necessity, or providing such notice is impracticable or impossible.

    2. The employee must report back to work in a timely manner. Employees whose active military duty is fewer than 31 days must return to work at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period. Those serving between 31 and 180 days must submit an application for reemployment within 14 days of release from service. Those serving 181 days or more must submit an application for reemployment within 90 days of release from service.

    3. The employee must provide official documentation of military leave for periods of leave that are longer than 30 days.

  1. ENLISTMENT, DRAFT, CALL TO ACTIVE DUTY

If an employee is absent from work due to active military service, the University will grant the employee a leave of absence for the duration of such period of service up to the maximum required by USERRA. Employees who enlist, are drafted, or are called to active duty in the uniformed services will be placed on leave of absence without pay.

  1. Reinstatement of Employment: The University will reinstate returning service members, if the following criteria are satisfied:

    • the employee had been employed in a regular staff or faculty position;

    • the employee gave notice to the employer before leaving, unless precluded by military necessity, or providing such notice is impracticable or impossible;

    • the cumulative period of active service did not exceed five years, excluding certain services required by, among other things, a declared war or national emergency;

    • the employee was not dishonorably discharged from the military;

    • the employee reported back to the civilian job in a timely manner, in accordance with the USERRA (see the table below); and

    • circumstances have not so changed as to make such reemployment impossible or unreasonable and does not impose an undue hardship on the University.

    Period of Service Action Employee Must Take When Action Must Be Taken Fron Completion of Service
    1-30 days Report to work At the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period
    31-180 days Must request reinstatement of employment Within 14 days of release from service
    Over 180 days Must request reinstatement of employment Within 90 days of release from service

    The University may request that the employee present a certificate of discharge or release from active duty under honorable conditions.

  1. Reemployment Positions:

    A person whose military service 90 days or less must be promptly reemployed in the following order of priority:

    1. In the job the person would have held had the person remained continuously employed so long as the person is qualified for the job, or can become qualified after reasonable efforts by the employer to qualify the person; or,
    2. If the employee cannot become qualified for the position in (1), in the employee's pre-service position so long as the person is qualified for the job or could become qualified after reasonable efforts by the employer; or
    3. If the employee cannot become qualified for the position in either (1) or (2), in any other position, which is the nearest approximation of (1) for which the person is qualified, with full seniority.

    A person whose military service lasted 91 days or more must be promptly reemployed in the following order of priority:

    1. In the job the person would have held had the person remained continuously employed, or a position of equivalent seniority, status, and pay so long as the person is qualified for the job, or can become qualified after reasonable efforts by the employer to qualify the person; or,
    2. If the employee cannot become qualified for the position in (1), in the employee's pre-service position so long as the person is qualified for the job or could become qualified after reasonable efforts by the employer; or
    3. If the employee cannot become qualified for the position in either (1) or (2), in any other position, which is the nearest approximation of (1) for which the person is qualified, with full seniority.

  2. Benefits:
    1. Healthcare/Dental: The University provides continued funding toward health and dental insurance for employees who are on military leave. Therefore, for up to 24 months, an employee called to active duty with the Guard or Reserve for other than training purposes, may continue University provided healthcare and dental coverage provided that the employee continues to pay any employee-share premium for such plan.

    2. Pension Plan: If an employee is not yet vested in his or her retirement plan, time spent on military leave will count towards the plan's vesting period. For those who are vested, the University will give service credit for pension accrual to those who go on active duty as though they never left. In addition, returning employees are entitled to the accrued pension benefits that are contingent upon making, or derived from, employee contributions.

    3. University 403(b) Plan: Employees participating in the University's 403(b) Plan may make up any contributions missed due to being on leave when they return to work. Although the requirements for making retroactive contributions are complex under the controlling law, and we will advise you of your specific rights and obligations upon your reemployment, you should understand that returning employees may take up to three times the length of military service, to a maximum of five years, to make up contributions which were not made during military leave. Moreover, makeup contributions are not subject to the annual limitations on plan contributions.

    4. Other Benefits: The coverage provided by insurance such as group life insurance and long-term disability insurance will be reinstated, with no waiting period, when the employee returns to active employment with the University.

    Dependents of employees who are eligible or become eligible for tuition remission benefits and course fee waiver benefits will retain this eligibility during the time the employee is on military leave.

Myriad issues may arise concerning your rights during military leave. This policy does not address all such issues. Insofar as issues arise that are not addressed in this policy, the University will abide by USERRA and any controlling state law. Should you have any questions or require further information, please contact the Human Resources Department for further information regarding military leave.

Submitted by: Employee/Labor Relations