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Advisory Memorandum No. 2004-01

Section 21.12 Leaves Required by Law or Negotiated Agreement - April 2004

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TO: Manual Holders
FROM: Terry Jordan, Director of Staffing Services
SUBJECT: Clarification of Special Military Leave Benefits

This memo addresses several issues associated with the ongoing administration of attendance and leave benefits for employees activated for military service in the war on terror. Questions concerning application of these military leave benefits may be referred to the Attendance and Leave Unit of the Department of Civil Service at (518) 457-2295.

TOPIC LIST

RULE AMENDMENTS
COVERED MILITARY ORDERS
MILITARY ORDERS SPANNING CALENDAR YEARS
NEW ORDERS VERSUS AMENDED ORDERS
ACCESS TO LEAVE CREDITS

Military Leave at Reduced Pay
Orders That Fall Within a Single Calendar Year
Orders That Span Calendar Years
Training Leave at Reduced Pay


RULE AMENDMENTS
Parts 21 and 28 of the Attendance Rules for Employees in New York State Departments and Institutions were amended to extend the availability of Supplemental Military Leave, Military Leave at Reduced Pay and Training Leave at Reduced Pay through December 31, 2004.

COVERED MILITARY ORDERS
In order to confirm an employee’s eligibility for Supplemental Military Leave at full pay and Military Leave at Reduced Pay, a determination must be made as to whether military orders have been issued for duty related to the war on terror. Until further notice, in accordance with the memorandum of the Governor’s Office of Employee Relations (GOER) dated December 1, 2003 on Special Military Benefits, orders should be reviewed in accordance with the following principles:

  1. If the orders submitted by the employee contain any clear indication that the employee will be deployed to the Middle East, assume the orders are related to the war on terror.
  2. If the orders contain any clear indication that the employee will be performing active duty related to homeland defense, assume that the orders are related to the war on terror.

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  3. If the orders contain any clear indication that the employee will be providing or receiving training in preparation for deployments related to the war on terror, assume that the orders are related to the war on terror.
  4. If the orders contain any clear indication that the employee will be performing duties related to logistical support of units being deployed in the war on terror (including service in units backfilling for other units deployed to the Middle East), assume that the orders are related to the war on terror.

If the orders submitted by the employee do not clearly fall within the preceding categories, ask the employee whether or not the orders are related to the war on terror. If the employee asserts that they are, contact the Attendance and Leave Unit of this Department for assistance in evaluating the orders.

Orders specifying Initial Active Duty Training (IADT) continue to be ineligible for these special military benefits; however, eligible employees on IADT continue to be covered by section 242 of the New York State Military Law.

Employees absent from work due to performance of routine inactive duty training such as weekend drills should not be treated as if they are performing military duty related to the war on terror. Such employees are covered by section 242 of the New York State Military Law and may be eligible for Training Leave at Reduced Pay.


MILITARY ORDERS SPANNING CALENDAR YEARS
One of the topics that has generated confusion has been how to correctly apply section 242 of the New York State Military Law to military orders that span more than one calendar year.

Under section 242, reservists and National Guard members are entitled to 30 calendar days or 22 workdays of paid military leave per calendar year or period of ordered military duty spanning two calendar years. Therefore, employees can use no more than 30 calendar days or 22 workdays in any single continuous period of ordered military duty. In cases where a single period of ordered military duty spans two calendar years, the entitlement to paid leave under section 242 is applied in two “steps,” as follows:

  1. At the beginning of the period of ordered military duty, the employee is entitled to any unused portion of his/her section 242 entitlement for the calendar year in which the ordered period of duty begins.
  2. Between January 1 of the following year and the end of that continuing period of ordered military duty, that employee can access up to 30 calendar days or 22...

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    ...workdays of paid leave minus the number of calendar days or workdays of section 242 leave used in Step 1.

Once that particular period of ordered duty is over, the employee’s section 242 entitlement for the remainder of that calendar year is equal to 30 calendar days or 22 workdays of paid leave, minus the number of calendar days or workdays of section 242 leave used in Step 2.

For example, an employee who had used 13 calendar days of section 242 leave prior to September 11, 2001, and who received a set of orders from October 1, 2001 through June 30, 2002, first used the remaining 17 calendar days of his/her calendar year 2001 section 242 leave, then exhausted Supplemental Military Leave at full pay before going on Military Leave at Reduced Pay through December 31, 2001. On January 1, 2002, he/she was returned to full pay status to use 13 calendar days of his/her section 242 entitlement for calendar year 2002, bringing him/her to the 30-day cap for orders that span two calendar years. He/She was then returned to Military Leave at Reduced Pay until the orders ended on June 30, 2002. The remaining 17 calendar days of his/her calendar year 2002 section 242 entitlement were not available to him/her until after the orders ended on June 30, 2002. (Please note that this example illustrates the application of section 242 of the New York State Military Law to military orders spanning calendar years and, for simplicity, does not address the issue of access to leave credits. See Access to Leave Credits below.)

As discussed below, proper application of the benefit provided by section 242 also requires us to distinguish between new orders and amended orders.


NEW ORDERS VERSUS AMENDED ORDERS
For the purposes of administering military leave benefits, it is important to distinguish between new orders and amended orders. New orders initiate a new period of ordered military duty. There is no requirement that an employee return to work between separate sets of orders in order to establish new orders. Separate sets of orders may be “back to back.” For example, an employee is issued one set of orders from November 1, 2002 through February 15, 2003 and a second set of orders from February 16, 2003 through March 31, 2003.

This is in contrast to orders that are simply amended or extended and do not initiate a new period of ordered military duty. Amended or extended orders will normally be labeled as such and are frequently for continuation of the same type of duty as the original orders. For example, an employee whose initial orders run from November 1, 2002 through February 15, 2003 may have those orders amended to change the end date from February 15, 2003 to March 31, 2003.

The question of whether orders are new, amended, or extended is significant in determining whether an employee has access to any remaining section 242 benefits for a given calendar year. Under section 242 of the State Military Law employees are limited to 30 calendar days or 22...

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...workdays of paid leave in a calendar year or a period of ordered military duty that spans more than one calendar year. For example, an employee is issued two sets of military orders related to the war on terror (one from November 1, 2002 through February 15, 2003, and the second from February 16, 2003 through March 31, 2003) and used 20 calendar days of his/her section 242 entitlement prior to November 1, 2002. From November 1 through 10, 2002, he/she used the remainder of his calendar year 2002 section 242 entitlement (10 calendar days) and went on Military Leave at Reduced Pay. On January 1, 2003, he/she returned to full pay status for 20 calendar days to bring him/her to the 30 day cap for that period of continuous orders spanning two calendar years, and then returned to Military Leave at Reduced Pay until the orders ended on February 15, 2003. When his/her new orders began on February 16, 2003 he/she then accesses the remainder of his/her 2003 section 242 leave (10 calendar days).

In contrast, an employee whose period of ordered military duty from November 1, 2002 through February 15, 2003 is simply extended through March 31, 2003 remains on one continuous period of ordered military duty through March 31, 2003. The employee is limited to a maximum of 30 calendar days of leave under section 242 for that continuous period of ordered military duty (in this example, 10 calendar days in 2002 and 20 calendar days in 2003) and cannot access the remainder of the 2003 section 242 entitlement (10 calendar days) until these orders end and the employee is issued new orders.

These examples illustrate the impact of new or amended/extended orders on access to section 242 benefits and, for simplicity, do not address the issue of access to leave credits. See “Access to Leave Credits.”


ACCESS TO LEAVE CREDITS
Questions have arisen concerning the point at which employees are entitled to charge leave credits in connection with military absences. The following principles apply:

Military Leave at Reduced Pay
In order to allow employees who are performing lengthy periods of military service in the war on terror more opportunities to use accrued leave credits before being placed on Military Leave at Reduced Pay, the policy governing access to credits during periods of ordered military duty has been amended.

Specifically, when an employee performing military duty related to the war on terror exhausts available military leave at full pay under section 242 of the New York State Military Law, he/she may charge appropriate credits provided that:

  1. His/her entitlement to Supplemental Military Leave at full pay has been exhausted; and...

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  2. ...He/she has not previously been placed on Military Leave at Reduced Pay following this instance of exhausting available military leave under section 242 of the New York State Military Law.

For the purpose of determining when an employee is allowed to charge appropriate leave accruals during an absence related to military duty in the war on terror, available military leave under section 242 is deemed to be exhausted when:

  1. The employee has reached 30 calendar days/22 workdays of leave under section 242 in a calendar year; OR
  2. The employee has reached 30 calendar days/22 workdays of leave under section 242 in a continuous period of ordered military duty spanning calendar years.

In other words, employees must be permitted to charge appropriate credits (credits other than sick leave) prior to being placed on Military Leave at Reduced Pay following each instance of exhausting available military leave under section 242.

If the 30 calendar days or 22 workdays of section 242 leave available for a continuous period of ordered duty spanning calendar years were exhausted in a prior calendar year, the employee does not have an opportunity to begin charging credits at the start of the following calendar year while in the same continuous period of ordered duty solely because no section 242 leave is available on January 1 of that new calendar year (see example 11).

Examples of the application of these principles follow:

Orders That Fall Within a Single Calendar Year

  1. An employee performed military duty related to the war on terror for the first time from March 1, 2003 through June 30, 2003. The employee used 30 calendar days of section 242 leave, thereby exhausting available military leave under section 242, and then used 30 calendar days of Supplemental Military Leave at full pay. Because the employee has not previously been placed on Military Leave at Reduced Pay following the most recent instance of exhausting available military leave under section 242, he then has the option to charge credits prior to being placed on Military Leave at Reduced Pay.


  2. An employee who had not previously used any of his calendar year 2004 section 242 leave receives military orders related to the war on terror in February 2004 for seven calendar days, then does 14 calendar days of summer camp in June 2004 and then receives orders related to the war on terror from September through November 2004. The employee used 25 calendar days of Supplemental Military Leave at full pay prior to calendar year 2004.

    The employee uses seven calendar days of his 2004 section 242 leave in February 2004, and 14 calendar days in June 2004. For the period of military duty from September through November...

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    ...2004 related to the war on terror, the employee uses the remainder of his section 242 leave for 2004 (nine calendar days) thereby exhausting available military leave under section 242, and then uses the remaining five calendar days of Supplemental Military Leave at full pay. Because he has not previously been placed on Military Leave at Reduced Pay following the most recent instance of exhausting available military leave under section 242, the employee has an option to charge credits prior to being placed on Military Leave at Reduced Pay.


  3. An employee has military orders related to the war on terror from January 31, 2004 through March 15, 2004. The employee had not previously used section 242 leave in calendar year 2004. She has not previously used any Supplemental Military Leave at full pay.

    The employee uses her 30 calendar days of section 242 leave at full pay for calendar year 2004, thereby exhausting available military leave under section 242, and then uses 15 calendar days of her Supplemental Military Leave at full pay until the orders end on March 15. The employee then receives a new set of orders related to the war on terror from August 1, 2004 through October 31, 2004. She first uses the remaining 15 calendar days of Supplemental Military Leave at full pay. Because she has not previously been placed on Military Leave at Reduced Pay following the most recent instance of exhausting available military leave under section 242, the employee then has the option to charge credits prior to going on Military Leave at Reduced Pay.


  4. An employee is on ordered military duty related to the war on terror beginning January 15, 2004 through February 22, 2004. The employee has not previously used section 242 leave in calendar year 2004. The employee had exhausted her Supplemental Military Leave at full pay prior to 2004.

    Beginning January 15, the employee first uses her 30 calendar days of leave under section 242 thereby exhausting available military leave under section 242. The employee then exercises her option to charge credits until the orders end on February 22, 2004. The employee is again ordered to military duty related to the war on terror from April 1, 2004 through April 30, 2004. Because she has not previously been placed on Military Leave at Reduced Pay following the most recent instance of exhausting available military leave under section 242, the employee has the option to charge credits prior to going on Military Leave at Reduced Pay.

  5. An employee is ordered to military duty related to the war on terror from January 2, 2004 through March 31, 2004 and from August 15 through October 15, 2004. The employee had used his Supplemental Military Leave at full pay prior to calendar year 2004.

    Beginning January 2, the employee uses 30 calendar days of section 242 leave at full pay for 2004, thereby exhausting available military leave under section 242. He has the option to charge credits prior to being placed on Military Leave at Reduced Pay. The employee charges five days of vacation and is then placed on Military Leave at Reduced Pay until the first set of orders end. When the second set of orders commence in August 2004, he does not have the option to charge...

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    ...credits because he has already been on Military Leave at Reduced Pay following the most recent instance of exhausting available military leave under section 242. Therefore, he is immediately placed on Military Leave at Reduced Pay.


  6. An employee has military orders related to the war on terror from March 1 through March 30, 2004. The employee has not previously used any section 242 leave in calendar year 2004. The employee had exhausted Supplemental Military Leave at full pay prior to 2004.

    He uses 30 calendar days of section 242 leave for this period of ordered military duty, thereby exhausting available military leave under section 242. He again performs military duty related to the war on terror from May 1 through June 30, 2004. Because he has not previously been placed on Military Leave at Reduced Pay following the most recent instance of exhausting available military leave under section 242, he has the option to charge credits before being placed on Military Leave at Reduced Pay.

Orders Spanning Calendar Years

  1. An employee receives orders for military duty related to the war on terror from December 21, 2003 to April 1, 2004. The employee has five remaining days of Supplemental Military Leave at full pay and had previously used 15 days of his calendar year 2003 section 242 leave for orders not related to the war on terror. Therefore the employee has 15 calendar days of his calendar year 2003 section 242 leave available when these orders begin on December 21, 2003.

    The employee uses 11 calendar days of his calendar year 2003 section 242 leave from December 21 through December 31. Beginning January 1, 2004, the employee accesses 19 calendar days of his calendar year 2004 section 242 leave to bring him to a total of 30 calendar days of section 242 leave for this period of military duty spanning calendar years, thereby exhausting available military leave under section 242. The employee then uses the five remaining days of Supplemental Military Leave at full pay. Then the employee exercises his option to charge credits prior to being placed on Military Leave at Reduced Pay.

    This employee subsequently receives orders related to the war on terror from October 1, 2004 through November 30, 2004. The employee exhausts his remaining section 242 leave for calendar year 2004 (30 calendar days minus the 19 calendar days already used in 2004 under the previous orders spanning calendar years). He then has an opportunity to charge credits prior to being placed on Military Leave at Reduced Pay.

  2. An employee receives orders related to the war on terror for the first time effective December 1, 2003 through June 15, 2004. He previously used 14 calendar days of his calendar year 2003 section 242 leave and therefore has 16 calendar days of section 242 leave available in calendar year 2003 when these orders begin on December 1.

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    He uses those 16 calendar days of section 242 leave and is then placed on Supplemental Military Leave at full pay from December 17 through December 31, 2003 (15 calendar days). Beginning January 1, 2004, he uses 14 calendar days of section 242 leave for calendar year 2004 (30 calendar days minus the 16 calendar days used in 2003 under these orders spanning calendar years). This brings him to a total of 30 calendar days of section 242 leave for this period of military duty spanning calendar years, thereby exhausting available military leave under section 242. He then uses his remaining 15 calendar days of Supplemental Military Leave at full pay. Because he has not previously been placed on Military Leave at Reduced Pay following this instance of exhausting available military leave under section 242, he then has an option to charge credits prior to being placed on Military Leave at Reduced Pay.

  3. An employee receives military orders related to the war on terror from December 18, 2003 through January 28, 2004. He previously used 25 calendar days of his calendar year 2003 section 242 leave. He has no remaining Supplemental Military Leave at full pay.

    When these orders begin on December 18, he uses the five remaining days of his 2003 section 242 leave, thereby exhausting available military leave under section 242. Because he has not previously been placed on Military Leave at Reduced Pay following this instance of exhausting available military leave under section 242, he then exercises his option to charge credits through December 31, 2003.

    On January 1, 2004 the employee again uses military leave under section 242. He uses 25 days of his calendar year 2004 section 242 leave (30 calendar days minus the five calendar days used in 2003 under these orders spanning calendar years), bringing him to a total of 30 calendar days of section 242 leave for this period of military duty spanning calendar years, thereby exhausting available military leave under section 242. Because he has not previously been placed on Military Leave at Reduced Pay following this instance of exhausting available military leave under section 242, he can elect to charge leave credits before being placed on Military Leave at Reduced Pay.

    The employee receives new orders related to the war on terror effective April 10, 2004 through May 10, 2004. He first uses the remaining five days of his calendar year 2004 section 242 leave, thereby exhausting available military leave under section 242. Because he has not previously been placed on Military Leave at Reduced Pay following this instance of exhausting available military leave under section 242, he then elects to charge credits for six days prior to being placed on Military Leave at Reduced Pay.

    The employee then receives another set of orders related to the war on terror from September 1, 2004 through September 30, 2004. He does not have the option to charge credits because he has already been on Military Leave at Reduced Pay following the most recent instance of exhausting available military leave under section 242. Therefore, he is immediately placed on Military Leave at Reduced Pay.

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  4. An employee is ordered to military duty related to the war on terror effective June 10, 2003 through June 9, 2004. She had previously used six calendar days of her section 242 leave for calendar year 2003. She has no remaining Supplemental Military Leave at full pay.

    When these orders begin on June 10, she uses her remaining 24 calendar days of her section 242 leave for calendar year 2003, thereby exhausting available military leave under section 242. Because she has not previously been placed on Military Leave at Reduced Pay following this instance of exhausting available military leave under section 242, she exercises her option to charge credits prior to being placed on Military Leave at Reduced Pay through December 31, 2003.

    Effective January 1, 2004, she again uses military leave under section 242. She uses six calendar days of her section 242 leave for calendar year 2004 (30 calendar days minus the 24 calendar days previously used in 2003 under these orders spanning calendar years), bringing her to a total of 30 calendar days of section 242 leave for this period of military duty spanning calendar years, thereby exhausting available military leave under section 242. Because she has not previously been placed on Military Leave at Reduced Pay following this instance of exhausting available military leave under section 242, she has an option to charge credits prior to being placed on Military Leave at Reduced Pay.

  5. An employee receives orders for military duty related to the war on terror from December 1, 2002 through March 31, 2004. The employee used all but five days of his section 242 leave for calendar year 2002 prior to December 2002. He used all his Supplemental Military Leave at full pay prior to 2002.

    When the orders begin in December 2002, he uses five calendar days of section 242 leave from December 1 through December 5, thereby exhausting his calendar year 2002 section 242 leave. Because he has not previously been placed on Military Leave at Reduced Pay following this instance of exhausting available military leave under section 242, he then has an option to charge credits prior to being placed on Military Leave at Reduced Pay. He charges five days and then goes on Military Leave at Reduced Pay through December 31, 2002.

    Beginning January 1, 2003, he again uses military leave under section 242. He uses 25 calendar days of his calendar year 2003 section 242 leave (30 calendar days minus the five calendar days used in 2002 under these orders spanning calendar years), bringing him to a total of 30 calendar days of section 242 leave for this period of military duty spanning calendar years, thereby exhausting available military leave under section 242. He has no further entitlement under section 242 under these orders spanning three calendar years. Following this instance of exhausting available section 242 leave, he then has an option to charge credits prior to being placed on Military Leave at Reduced Pay through December 31, 2003.

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    The employee exhausted his entitlement to section 242 leave for these orders spanning calendar years during calendar year 2003 and had no further section 242 entitlement under these orders. The employee had already been placed on Military Leave at Reduced Pay after exhausting the section 242 leave available under these orders in 2003. Therefore, the employee does not have the option to begin charging credits at the start of the next calendar year while in this continuous period of ordered military duty. The employee remains on Military Leave at Reduced Pay.

Training Leave at Reduced Pay
An employee has one window of opportunity per calendar year to charge leave credits before being placed on Training Leave at Reduced Pay. This opportunity exists only when ALL of the following conditions are met:

  • The employee has exhausted his/her total entitlement to paid leave under section 242 of the New York State Military Law in the current calendar year;
  • In the current calendar year the employee has previously performed active duty related to the war on terror; and
  • The employee has NOT previously been placed on Training Leave at Reduced Pay in the current calendar year.

Employees who meet all of these conditions may elect to charge leave credits (except sick leave) for military absences unrelated to the war on terror. Once they stop charging credits and use Training Leave at Reduced Pay for the first time in the calendar year, however, they are not allowed to charge leave credits for military absences to which Training Leave at Reduced Pay would apply for the remainder of the calendar year.

Some examples follow:

  1. An employee is activated from January 5, 2003 through May 30, 2003 for the first time in connection with the war on terror. He uses 30 calendar days of section 242 leave, exhausting his 2003 entitlement to section 242 leave. He next uses 30 calendar days of Supplemental Military Leave at full pay. He then has an option to charge credits, which he exercises, prior to being placed on Military Leave at Reduced Pay.

    In June, 2003, the employee performs 14 calendar days of training duty (summer camp). The employee is eligible for Training Leave at Reduced Pay because he has exhausted his 2003 calendar year entitlement to section 242 leave and he has previously performed military duty related to the war on terror in the 2003 calendar year. The employee has an option to charge credits prior to going on Training Leave at Reduced Pay, because he has not previously utilized Training Leave at Reduced Pay in the 2003 calendar year.

    From January 2, 2004 through March 1, 2004, this employee performs active military duty that is not related to the war on terror. He uses his 30 calendar days of section 242 leave for calendar...

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    ...year 2004, exhausting section 242 leave for the calendar year, and has the option to charge credits prior to being placed on military leave without pay. The employee is not eligible for Training Leave at Reduced Pay because he has not previously performed military duty related to the war on terror thus far in calendar year 2004.

    In June 2004, the employee performs 14 calendar days of training duty (summer camp). He has the option to charge credits prior to being placed on military leave without pay. He is not eligible for Training Leave at Reduced Pay because he has not previously performed military duty related to the war on terror thus far in calendar year 2004.

    The employee subsequently receives orders for military duty related to the war on terror from September 1 through September 30, 2004. The employee has an option to charge credits prior to being placed on Military Leave at Reduced Pay because he has not previously been on Military Leave at Reduced Pay following the most recent instance of exhausting available military leave under section 242 in January 2004.

    The employee next receives orders for ten days of training from October 16 through October 25, 2004. The employee will be eligible for Training Leave at Reduced Pay because he has previously performed military duty related to the war on terror in calendar year 2004. He has the option to charge credits prior to being placed on Training Leave at Reduced Pay because he has not previously been placed on Training Leave at Reduced Pay in the current calendar year.

  2. An employee, who has not previously performed military duty related to the war on terror is activated for nine calendar days in January 2003 for duty related to the war on terror. She uses nine calendar days of her calendar year 2003 section 242 entitlement.

    She then receives orders for 21 calendar days of training in February 2003. She uses the remaining 21 calendar days of her section 242 entitlement for calendar year 2003, thus exhausting her section 242 entitlement for the calendar year.

    She is then activated for duty related to the war on terror from March 1, 2003 through March 5, 2003. She uses five days of Supplemental Military Leave at full pay for this absence.

    She next performs two days of drills on March 20 and 21, 2003. She is eligible for Training Leave at Reduced Pay since she has performed duty related to the war on terror in 2003 and has exhausted her 2003 entitlement to section 242 leave. However, rather than using Training Leave at Reduced Pay, she opts to charge two days of vacation. The option to charge credits is available to her because she has not previously used Training Leave at Reduced Pay in this calendar year.*

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    She again performs drills on April 20 and 21, 2003. This time, she uses Training Leave at Reduced Pay, thus precluding future use of leave credits in calendar year 2003 for absences for which Training Leave at Reduced Pay is available.*

    She is then activated for 60 days of active duty related to the war on terror from June 1 through July 30, 2003. She first exhausts her remaining 25 days of Supplemental Military Leave at full pay from June 1 through June 25, 2003. She then has the option to charge appropriate credits prior to being placed on Military Leave at Reduced Pay, because she has not previously been placed on Military Leave at Reduced Pay following the most recent instance of exhausting available military leave under section 242 in February 2003. She opts to charge ten days of vacation and then uses Military Leave at Reduced Pay for the balance of this activation. She will not have another opportunity in calendar year 2003 to charge leave credits for absences for which Military Leave at Reduced Pay is available.

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* For duty not related to the war on terror, overtime ineligible employees continue to be subject to the provisions of sections 21.16 and 28-1.18 of the Attendance Rules which provide paid leave when such employees are ordered to temporary military duty for a period of less than a Thursday through Wednesday workweek. See Attendance and Leave Manual Advisory Memorandum 2002-03 dated May 2002 and Policy Bulletin 1998-01 dated July 6, 1998.

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