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Summary of differences between federal and state regulations
The Uniformed Services Employment and Reemployment Rights Act (USERRA) does not provide protection to members of the National Guard serving the states, nor do such members receive the protections of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) (which was re-written in 2003 as the Servicemembers Civil Relief Act) when in state (rather than federal) service. The state protections listed below are in addition to protections under federal laws.
Reemployment in private industry
Any person who, in order to perform military service, has left or leaves a position (other than a temporary position) and who (a) receives a certificate of completion of military service; (b) is still qualified to perform the duties of such position; and (c) makes application for reemployment within 90 days after he is relieved from such service, such employer shall restore such person to such position, or to a position of like seniority, status and pay, unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.
Any such person shall be restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer, and shall not be discharged without cause within one year after such restoration.
Military leave for public employees
Public officers or employees who are or become members of any force of the organized militia or of any reserve force or reserve component of the armed forces of the United States are entitled to leave while performing initial full-time military training duty or initial active duty for training with or in an armed force of the United States, including going to and returning from such full-time training duty or active duty for training.
Military leave must not constitute an interruption of continuous employment. Employees must not be subjected, directly or indirectly, to any loss or reduction of time service, increment, vacation or holiday privileges, or any other right or privilege, by reason of such absence; or be prejudiced based on the leave, in regard to continued employment, reappointment to office, re-employment, reinstatement, transfer, or promotion.
Public employees must be paid their salary or other compensation periods of military leave, including travel to and from such duty, up to a total of 30 days or 22 working days, whichever is greater, in any one calendar year; and up to 30 days or 22 working days, whichever is greater, in any one continuous leave.
Effective April 1, 2019, NY state employees who served in a combat theater or combat zone of operations as indicated by applicable department of defense documentation, must be paid their salary or other compensation for any and all periods of absence while utilizing any healthcare related services related to such duty, not exceeding five working days, in any one calendar year.
Leave of absence for military spouses
The spouse of a member of the armed forces, national guard or reserves (who has been deployed during a period of military conflict to a combat theater or combat zone of operations) shall be allowed up to ten days unpaid leave by their employer. Such leave shall only be used when the spouse is on leave from the armed forces of, national guard or reserves while deployed during a period of military conflict to a combat theater or combat zone of operations.
An employer shall not retaliate against an employee for requesting or obtaining a leave of absence as provided in this section.
“Employee” means a person who performs service for hire for an employer, for an average of 20 or more hours per week, but does not include an independent contractor.
“Employer” means a person or entity that employs 20 or more employees at at least one site and includes an individual, corporation, the state, county, town, city, school district, public authority or other governmental subdivision of any kind.
State
Contacts
None.
Regulations
New York Military Law, Article 13, §317, Reemployment in private industry
New York Military Law, Article 11, §242, Rights of public officers and employees absent on military duty
New York Labor Law, Article 7, §202-I, Leave of absence for military spouses
Federal
Contacts
DOL’s Veterans’ Employment and Training Service (VETS)
Veterans’ Employment and Training Service (VETS)
200 Constitution Avenue, NW
Room S-1325
Washington, D.C. 20210
Phone: 1-866-4-USA-DOL (1-866-487-2365) or 202-693-4770
Website: www.dol.gov/vets/
Regulations
5 CFR Part 353 Restoration to Duty from Uniformed Service or Compensable Injury
20 CFR Part 1002 Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994