Advisory Memorandum No. 2002-03

Section 21.12 Leaves Required by Law or Negotiated Agreement - May 2002

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TO: Manual Holders
FROM: William Doyle
SUBJECT: Training Leave at Reduced Pay For Military Duty Not Related to the Events of September 11th and Extension of Special Military Leave in Connection With the Events of September 11th

SPECIAL MILITARY LEAVE

The Attendance Rules for Employees in New York State Departments and Institutions are being amended to extend through December 31, 2002 the special military leave benefits granted in connection with the events of September 11, 2001. Previously these benefits were due to expire September 10, 2002. (See Advisory Memorandum No. 2001-06, dated September 25, 2001).

TRAINING LEAVE AT REDUCED PAY

The Attendance Rules are also being amended to provide Training Leave at Reduced Pay for eligible Nonmanagerial/Confidential and Managerial/Confidential employees. This new leave category will be available to employees who (1) performed military duty in connection with the events of September 11, 2001 during calendar year 2002; and (2) have exhausted their calendar year 2002 entitlement to military leave at full pay pursuant to Section 242 of the State Military Law and subsequently perform military duty in 2002 that is not related to the events of September 11th (such as drills, summer camp and other ordered training as well as active duty unrelated to the events of September 11th).

Employees are eligible for up to a maximum of 30 calendar days or 22 workdays of Training Leave at Reduced Pay, whichever is greater. Training Leave at Reduced Pay is available during the period January 1, 2002 through December 31, 2002. Eligible employees will be paid regular State salary (defined as base pay plus location pay plus geographic differential) reduced by military pay (defined as base pay plus housing and food allowances).

These Rule amendments are consistent with Memoranda of Understanding between the State and CSEA, PEF, DC-37, Council 82, and NYSCOPBA that were negotiated in recognition of the fact that employees who performed military duty in calendar year 2002 in connection with the events of September 11th may not have sufficient paid leave remaining to cover military obligations not related to the events of September 11, 2001.

Questions about information in this memo, or other military leave issues, should be directed to the Attendance and Leave Unit of this Department at (518) 457-2295.

Employees in Training Leave at Reduced Pay status may continue NYSHIP Empire Plan or HMO family coverage during the period of eligibility for this special leave category (up to 30...

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...calendar days) by paying the employee share of the premium. Separate guidelines will be issued by the Employee Benefits Division of this Department.

Eligibility

Employees in covered bargaining units, or in positions designated Managerial/Confidential are eligible for Training Leave at Reduced Pay following (1) any active military service in calendar year 2002 that is related to the events of September 11, 2001; and (2) exhaustion of their calendar year 2002 Military Leave entitlement under Section 242 of the New York State Military Law, and any leave credits (other than sick leave) that they elect to use. This benefit is available for military absences not related to the events of September 11, 2001 such as training, drills, summer camps, and other active duty that is not part of the response to those events.

This benefit is available during the period January 1, 2002 through December 31, 2002. During this period, employees are eligible for a maximum of 30 calendar days or 22 workdays of Training Leave at Reduced Pay. Calendar days and workdays of Training Leave at Reduced Pay are counted in the same manner as calendar days and workdays are counted under Section 242 of the State Military Law.

While Training Leave at Reduced Pay is similar in operation to Military Leave at Reduced Pay provided under Memoranda of Understanding signed in September 2001, it should be understood that it is a separate benefit. Eligibility for Training Leave at Reduced Pay is not contingent upon prior use of Military Leave at Reduced Pay.

Calculation of Benefit

For employees who have already utilized Military Leave at Reduced Pay, for military duty in connection with the events of September 11th, the rate of pay calculated for that leave will also apply to Training Leave at Reduced Pay.

For employees who have not already utilized Military Leave at Reduced Pay, the rate of pay for Training Leave at Reduced Pay will be based on the employee's regular State salary as of the last day in full pay status before his or her first use of Training Leave at Reduced Pay and military pay as of the first day of the Training Leave at Reduced Pay.

Once an employee has used Training Leave at Reduced Pay, the stipend provided by this benefit is not recalculated to reflect subsequent changes in State salary or military pay. Similarly, there is no recalculation upon receipt of new orders.

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Employees for whom a stipend has not previously been calculated (under the Training Leave provisions or under orders related to the events of September 11) are required to furnish their agency with confirmation of military pay in the form of a Leave and Earning Statement for the first date of Training Leave at Reduced Pay in order to facilitate calculation of the stipend. The agency must forward a copy of this document to the Office of the State Comptroller.

Existing agency requirements concerning the need for employees to provide copies of orders or drill schedules and copies of Leave and Earning Statements to verify that military duty has, in fact, been performed continue unchanged.

Status

An employee is in Training Leave at Reduced Pay status (not leave without pay status) even if he/she does not actually receive a stipend because military pay exceeds State salary.

Military Leave at Full Pay

In order to be eligible for Training Leave at Reduced Pay an employee must have exhausted all of his/her calendar year 2002 entitlement to 30 calendar days or 22 workdays of military leave with pay under Section 242 of the State Military Law. It does not matter whether the employee was on military duty in connection with the events of September 11 or on military duty not related to the events of September 11 while exhausting that entitlement under Section 242.

Supplemental Military Leave at Full Pay is not available to employees while they are performing military duty covered by the Training Leave at Reduced Pay benefit.

Use of Leave Credits Prior to Beginning to Receive Training Leave at Reduced Pay

Reservists and National Guard members have the option of charging leave credits (other than sick leave) after they have exhausted their entitlement to military leave at full pay under section 242 of the Military Law and prior to utilizing Training Leave at Reduced Pay. This is the same principle that applies to employees going on Military Leave at Reduced Pay for duty related to the events of September 11, 2001.

Once an employee goes on Training Leave at Reduced Pay, regardless of whether this initial use of the benefit is retroactive or prospective, the employee may not opt to charge credits for subsequent covered absences in 2002 until his/her entitlement to Training Leave at Reduced Pay is exhausted.

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Biweekly Vacation and Sick Leave Credits

Employees on Training Leave at Reduced Pay for a full biweekly pay period are not eligible to earn biweekly vacation and sick leave credits. Employees on Training Leave at Reduced Pay for less than a full biweekly pay period earn biweekly vacation and sick leave credits if they otherwise meet the requirements to earn biweekly leave credits by being in full pay status for 7 out of 10 days (or a proportionate number of days for employees with work schedules of less than 10 days in a biweekly payroll period). Days of Training Leave at Reduced Pay are not days in full pay status and do not count toward meeting the requirement to earn biweekly leave credits. Leave balances standing to the employee's credit at the time his/her Training Leave at Reduced Pay began are restored upon his/her return from leave except for credits that otherwise would have expired.

Holidays

Employees on Training Leave at Reduced Pay do not receive credit for holidays, including floating holidays, that fall during a period of Training Leave at Reduced Pay. Holiday leave credit earned prior to the period of military leave will be restored upon the employee's return from leave except for credits that otherwise would have lapsed.

When calculating entitlement to Training Leave at Reduced Pay, a holiday that falls during a period of Training Leave at Reduced Pay is counted as a calendar day but not as a workday of entitlement used. A floating holiday is counted as both a calendar day and a workday.

Personal Leave Anniversary Date

If the employee's personal leave anniversary date falls during a period of Training Leave at Reduced Pay, the employee is granted his/her personal leave days and the anniversary date does not change. Personal leave standing to the employee's credit at the time the period of Training Leave at Reduced Pay began will be restored to the employee upon return from leave, except for credits that otherwise would have lapsed.

Vacation Anniversary Date

If the employee's vacation anniversary date falls during a period of Training Leave at Reduced Pay, the employee is granted any vacation bonus days or additional vacation days for which he/she is eligible, subject to applicable maximums, and the vacation anniversary date is not adjusted. Vacation standing to the employee's credit at the time the period of Training Leave at Reduced Pay began will be restored to the employee upon return from leave, except for credits that otherwise would have lapsed.

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Income Protection Plan Sick Leave Grant Date

If the employee's Income Protection Plan sick leave grant date falls during a period of Training Leave at Reduced Pay, the grant date is adjusted to the date the employee returns from leave and the employee receives his/her four-day grant on that revised date. Any sick leave standing to the employee's credit when the period of Training Leave at Reduced Pay began will be restored to the employee upon return from Training Leave at Reduced Pay except for credits that otherwise would have lapsed.

Lump Sum Payment

Pursuant to Sections 23.2 and 30.2 of the Attendance Rules, a lump sum payment for accrued and unused vacation and overtime compensatory leave credits cannot be processed until the end of the period of military leave with pay, including periods of Training Leave at Reduced Pay. (Under the Attendance Rules, employees absent for training purposes are ineligible for a lump sum payment regardless of their pay status.)

Overtime Ineligible Employees with Orders of Less Than a Workweek

During a period of Training Leave at Reduced Pay, overtime ineligible employees continue to be subject to the provisions of Sections 21.16 and 28-1.18 for any period of less than a workweek during which such employees are ordered to temporary military duty.

Non-Retroactive Application of Benefit

Once employees meet the eligibility criteria, and have charged any credits (except sick leave) that they elect to use, they should automatically be placed on Training Leave at Reduced Pay when performing military service that is unrelated to the events of September 11, 2001. Agencies should notify employees that once they utilize Training Leave at Reduced Pay, they will be placed on Training Leave at Reduced Pay rather than on military leave without pay for subsequent absences for military duty in 2002 that are not related to the events of September 11, 2001, subject to a maximum of 30 calendar days or 22 workdays.

Retroactive Application of Benefit

Some employees may have already met the eligibility criteria for Training Leave at Reduced Pay prior to the implementation of the benefit and, while on subsequent military duty not related to the events of September 11, 2001, may have gone on military leave without pay or elected to charge appropriate leave credits prior to going on military leave without pay. These employees are entitled to request retroactive application of Training Leave at Reduced Pay as described below. In such cases, leave records must be reconstructed accordingly. In all cases, processing of Training Leave at Reduced Pay requires submission of documentation as described under "Calculation of Benefit" above.

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Employees who wish to be placed on Training Leave at Reduced Pay retroactively must notify their agencies no later than June 14, 2002. No requests for retroactive application of the benefit will be honored after that date. Please note that this retroactivity applies only to military absences in calendar year 2002 that are not related to the events of September 11, 2001.

When an employee files a request for retroactive coverage under the benefit, agencies must verify that the employee in question met the eligibility criteria on the dates for which he/she is requesting coverage.

Employees are not obligated to request retroactive coverage back to the first date on which they became eligible for Training Leave at Reduced Pay. HOWEVER, beginning on the first date that employees elect to go on Training Leave at Reduced Pay retroactively, the benefit will be applied to ALL subsequent absences for military service in 2002 that are not related to the events of September 11, 2001 (subject to the 30 calendar day/22 workday maximum).

The Office of the State Comptroller will issue guidelines for processing the necessary payroll adjustments to reflect a retroactive status change from military leave without pay or military leave charged to leave credits to Training Leave at Reduced Pay.

Employees Who Went on Military Leave Without Pay

Eligible employees who went on military leave without pay may request to be placed on Training Leave at Reduced Pay retroactively. Affected employees should be notified immediately of that option. As stated above, they may request that the benefit be applied beginning on the first date that they were eligible or they may request that the benefit be applied starting on a subsequent date on which they performed covered service. However, beginning on the first date that the employee chooses to be placed on Training Leave at Reduced Pay retroactively, the benefit will be applied to any subsequent covered military duty in 2002 until it is exhausted.

If the employee's personal leave anniversary date fell during a period of military leave without pay that is retroactively designated as Training Leave at Reduced Pay, the date should revert to the original personal leave anniversary date and the employee should be credited with personal leave days on that date.

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If the employee's vacation anniversary date fell during a period of military leave without pay that is retroactively designated as Training Leave at Reduced Pay, the employee should be credited with vacation bonus days or additional vacation days as appropriate on that date.

Since days of Training Leave at Reduced Pay, like days of leave without pay, do not count toward meeting the 7 out of 10 day requirement to earn biweekly leave credits, no adjustment is required when converting a period of leave without pay to Training Leave at Reduced Pay. A change from military leave without pay to Training Leave at Reduced Pay has no impact on IPP grant dates or on credit for holidays.

Employees Who Elected to Charge Leave Credits

Employees who exercised their option to charge leave credits prior to implementation of this benefit during a period for which they are now eligible for Training Leave at Reduced Pay may leave their decision to charge leave credits unchanged or may elect to be retroactively placed on Training Leave at Reduced Pay. Affected employees should be notified immediately of that option. As stated above, they may request that the benefit be applied beginning on the first date that they were eligible or they may request that the benefit be applied starting on a subsequent date on which they performed covered service. However, beginning on the first date that the employee chooses to be placed on Training Leave at Reduced Pay retroactively, the benefit will be applied to any subsequent covered military duty in 2002 until it is exhausted.

Employees who have a retroactive status change from military leave charged to credits to Training Leave at Reduced Pay will have their leave records reconstructed to reflect Training Leave at Reduced Pay instead of a charge to leave credits. This reconstruction of leave records should occur after full repayment of salary owed has been made.

Employees whose status is changed to Training Leave at Reduced Pay will have credits charged restored, except that leave credits which would have lapsed cannot be restored (for example, vacation credits over 40 days on April 1 in certain bargaining units, personal leave that would have expired on the employee's personal leave anniversary date, floating holidays that would have expired, and holiday leave that would have expired in certain bargaining units).

For employees whose status is changed retroactively from military leave charged to credits to Training Leave at Reduced Pay, IPP dates that fell during that period will need to be adjusted to the date the employee returned from leave and IPP grant days are credited on that date. Also, employees are not eligible to be credited with holidays that fall during a period of Training Leave at Reduced Pay and credit for holidays may need to be adjusted accordingly.

In addition, agencies need to review whether retroactive placement on Training Leave at Reduced Pay affects the employee's eligibility to earn biweekly leave credits each pay period.

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Employees who no longer meet the 7 out of 10 day requirement to earn biweekly leave credits in a pay period should have their leave balances adjusted accordingly.

Examples

Example 1 (Retroactive Application - Was on LWOP for Orders NOT Related to 9/11)
An employee was on military leave related to the events of September 11 from September 12 through December 1, 2001. Since he had already used 9 days of his calendar year 2001 entitlement to military leave at full pay under Section 242 prior to September 12, he used the remaining 21 calendar days of leave under Section 242 (thereby reaching the 30 calendar day limit under Section 242 for ordered duty within a calendar year), followed by Supplemental Military Leave at Full Pay. He then opted to charge appropriate credits for several days, and followed this with a period of Military Leave at Reduced Pay until the orders ended on December 1, 2001.

He receives a second set of orders related to the events of September 11 for the period December 20, 2001 through February 20, 2002. He is on Military Leave at Reduced Pay through December 31, 2001; beginning January 1, 2002, he goes on military leave at full pay under Section 242 for 30 calendar days (thereby exhausting his calendar year 2002 entitlement to military leave at full pay under Section 242) and then goes on Military Leave at Reduced Pay until the orders end on February 20, 2002.

He subsequently performs military duty that is not related to the events of September 11 for three weeks in March 2002. He elects not to charge appropriate leave credits and goes on military leave without pay. After the implementation of this benefit, he is then eligible to be placed on Training Leave at Reduced Pay for this military duty (as well as subsequent military duty in 2002 that is not related to the events of September 11 until the benefit maximum is reached).

The employee elects to be placed on Training Leave at Reduced Pay retroactive to his first date of eligibility in March 2002. (Alternatively he could have elected to begin Training Leave at Reduced Pay at any point after his first date of eligibility.) Once the employee elects to be placed on Training Leave at Reduced Pay he must remain in that status for all military duty in 2002 that is unrelated to the events of September 11 until the benefit maximum is reached.

Example 2 (Retroactive Application - Charged Credits for Orders NOT Related to 9/11)
An employee was on military leave related to the events of September 11th from October 1, 2001 through January 31, 2002. He had used 10 calendar days of his Section 242 entitlement to military leave at full pay prior to October 1, 2001 when these orders began. While on these orders, he used the remaining 20 calendar days of his Section 242 entitlement to military leave at full pay for 2001 (thereby reaching the 30 calendar day limit under Section 242 for ordered duty...

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...within a calendar year), used all his Supplemental Military Leave at Full Pay, used appropriate credits at the employee's option and then went on Military Leave at Reduced Pay through December 31, 2001. Since the orders spanned two calendar years, he was returned to full pay status on January 1, 2002 to use 10 calendar days of military leave at full pay under Section 242 (thereby reaching the 30 calendar day limit under Section 242 for orders that span two calendar years) and then went back on Military Leave at Reduced Pay until the orders ended on January 31, 2002.

He subsequently performs military duty that is not related to the events of September 11 for two weeks in February 2002, two weeks in March 2002, and two weeks in April 2002. The 14 days in February and the first six days of the March duty are military leave at full pay under Section 242 (thereby reaching the 30 calendar day limit under Section 242 for ordered duty within a calendar year). The employee elects to charge appropriate credits for the eight days in March and goes on military leave without pay for the two weeks in April.

Upon implementation of this benefit he is then eligible to be placed on Training Leave at Reduced Pay for the eight days of the March duty charged to leave credits and the 14 days in April of military leave without pay (as well as subsequent military duty in 2002 unrelated to the events of September 11 until he reaches the benefit maximum). The employee elects to continue to charge leave credits for the eight days in March and to go on Training Leave at Reduced Pay beginning with the military duty in April. Once the employee elects to be placed on Training Leave at Reduced Pay he must remain in that status for all subsequent military duty in 2002 that is unrelated to the events of September 11 until the benefit maximum is reached.

Example 3 (Non-Retroactive Application)
An employee performs military duty related to the events of September 11 from October 2, 2001 through November 15, 2001, exhausting her 2001 entitlement to military leave at full pay under Section 242 and 15 calendar days of her Supplemental Military Leave at Full Pay. She performs military duty that is not related to the events of September 11th for the months of February and March 2002. While on that duty she exhausts her 2002 entitlement under Section 242 and then goes on military leave without pay. (She is not eligible for Training Leave at Reduced Pay for this period because she has not met the eligibility requirement of having performed military duty related to the events of September 11 in calendar year 2002.)

In June 2002 she performs military duty related to the events of September 11th for four weeks and uses the remaining 15 calendar days of her Supplemental Military Leave at Full Pay followed by appropriate credits at the employee's option and is then placed on Military Leave at Reduced Pay until the orders end.

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In August 2002, she performs two weeks of military duty not related to the events of September 11 and is eligible for the first time to be placed on Training Leave at Reduced Pay for this and subsequent military duty in 2002 unrelated to the events of September 11 until she reaches the benefit maximum. The employee may elect to charge appropriate credits prior to beginning Training Leave at Reduced Pay (Training Leave at Reduced Pay automatically begins after military leave at full pay under Section 242 of the New York State Military Law and any credits the employee elects to use are exhausted). However, once Training Leave at Reduced Pay begins, the employee must continue on Training Leave at Reduced Pay for subsequent absences in 2002 unrelated to the events of September 11 until the benefit maximum is reached.

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