Military and Emergency Services Leave Law Summaries

5-7200 California, Military and Emergency Services Leave Law Summaries

California's military leave law is located in the California Codes Annotated, under the Military and Veterans Code, at Division 2, Part 1, Chapter 7. For full text, see Wages-Hours 5-58,001 et seq.

Military leave is also covered under the California Government Code at Title 2, Division 5, Part 2, Chapter 11, Articles 1, 2, and 3; and at Part 2.6, Chapter 1, Article 1.

DEFINITIONS

"Public agency" means the state, or any county, city and county, city, municipal corporation, school district, irrigation district, water district, or other district (Sec. 389).

"Public employee" means any officer or employee of a public agency, except for those executive branch officers and employees subject to the California Government Code (Sec. 389). Public employees include members of the following (Military and Veteran Code, Sec. 395, as amended by Ch. 928 (S. 1950), L. 1999, effective January 1, 2001):

(1) the reserve corps of the armed forces of the United States;

(2) the National Guard; or

(3) the Naval Militia.

Public officers and employees include all of the following (Sec. 395.3):

(1) members of the Senate and of the Assembly;

(2) justices of the Supreme Court and the courts of appeal, judges of the superior courts and of the municipal courts, and all other judicial officers;

(3) all other state officers and employees, including all officers for whose selection and term of office provision is made in the constitution and laws of California (executive employees covered under the California Government Code are excluded in this definition, however);

(4) all officers and employees of any county, city and county, city, township, district, political subdivision, authority, commission, board, or other public agency within California.

"Temporary incapacitations" means any period of incapacitation of 52 weeks or less (Sec. 394(e)(1), as amended by Ch. 299 (A. 120), L. 2001).

"Benefit" includes, but is not limited to, health care that may be continued at the employee's expense, life insurance, disability insurance, and seniority status (Sec. 394(e)(2), as amended by Ch. 299 (A. 120), L. 2001).

"Temporary military leave of absence" means a leave of absence from public employment to engage in ordered military duty for a period not to exceed 180 calendar days, including travel time for purposes of active military training, encampment, naval cruises, special exercises or like activity as a member of the reserve corps or force of the armed forces of the United States, or the National Guard, or the Naval Militia (Sec. 389).

"State employee or employee," except where otherwise indicated, means employees subject to the Ralph C. Dills Act (Chapter 10.3), supervisory employees, managerial employees, confidential employees, employees of the Legislative Counsel Bureau, employees of the Bureau of State Audits, employees of the Public Employment Relations Board, employees of the California Maritime Academy, conciliators employed by the State Conciliation Service within the Department of Industrial Relations, employees of the Department of Personnel Administration, professional employees of the Department of Finance engaged in technical or analytical state budget preparation other than audit staff, intermittent athletic inspectors who are employees of the State Athletic Commission, professional employees in the Personnel/Payroll Services Division of the Controller's office and all employees of the executive branch of government who are not elected to office (Sec. 19815).

This definition applies only to executive branch employees.

"Exempt employee" means an employee who is exempt from the state civil service under the California Constitution (Gov't Code, Sec. 19770(c), as amended by Ch. 60 (A. 1433), L. 2001, effective June 21, 2002).

This definition applies only to executive branch employees.

COVERAGE

Private employers, public employers (Sec. 395.3), and public agencies (Sec. 389) are covered under California's Military and Veterans Code.

Executive branch employers (Sec. 19815) are covered under California's Government Code.

PROCEDURES

Interaction with other laws. --If any of the military leave law provisions in California's Military and Veterans Code concerning pay or reinstatement are in conflict with the provisions of California's Government Code, the provisions in the Government Code may be controlling (Sec. 395.01, as amended by Ch. 928 (S. 1950), L. 1999, effective January 1, 2001; Sec. 395.05(b) and 395.1(e)).

The Military Department shall comply with the provisions of Sec. 4301 of Title 38 of the United States Code, the Uniformed Services Employment and Reemployment Rights Act (USERRA) (Military and Veterans Code, Sec. 395.5, as added by Ch. 680 (S. 1697), L. 2005, enacted September 29, 2006).

For purposes of USERRA, Military Department personnel who are on state active duty and are deployed, mobilized, or otherwise subject to any federal active service under voluntary or involuntary conditions, shall be considered employees and provided the same federal reemployment protections and benefits given to other employees under USERRA (Military and Veterans Code, Sec. 395.5, as added by Ch. 680 (S. 1697), L. 2005, enacted September 29, 2006).

WHAT THE EMPLOYER MUST DO

Military leave

Private employers. --Discrimination. --No person may discriminate against any officer, warrant officer or enlisted member of the military or naval forces of the state or of the United States because of that membership. No member of the military forces may be prejudiced or injured by any person, employer, or officer or agent of any corporation, company, or firm with respect to that member's employment, position or status or be denied or disqualified for employment by virtue of membership or service in the military forces of California or of the United States (Sec. 394(a), as amended by Ch. 299 (A. 120), L. 2001).

Employment rights. --No employer or officer or agent of any corporation, company, or firm, or other person may discharge any person from employment because of the performance of any ordered military duty or training or by reason of being an officer, warrant officer, or enlisted member of the military or naval forces of this state, or hinder or prevent that person from performing any military service or from attending any military encampment or place of drill or instruction the employee may be called upon to perform or attend by proper authority; prejudice or harm the employee in any manner in the person's employment, position, or status by reason of performance of military service or duty or attendance at military encampments or places of drill or instruction; or dissuade, prevent, or stop any person from enlistment or accepting a warrant or commission in the California National Guard or Naval Militia by threat or injury to in respect to employment, position, status, trade, or business because of enlistment or acceptance of a warrant or commission (Sec. 394(d), as amended by Ch. 299 (A. 120), L. 2001).

Benefits. --No private employer or officer or agent of any corporation, company, or firm, or other person, can restrict or terminate any collateral benefit for employees by reason of an employee's temporary incapacitation incident to duty in the National Guard or Naval Militia (Sec. 394(e)(1), as amended by Ch. 299 (A. 120), L. 2001).

National Guard. --Every officer and enlisted member of the California National Guard who, in order to undertake active military duty in the service of the state when the Governor has issued a proclamation of a state of insurrection or a proclamation of a state of extreme emergency or when the California National Guard is on active duty, or a service member called to active service or duty under Ch. 7.5 (commencing with Sec. 400), has left a position, other than a temporary position, in private employment, receives a certificate of satisfactory service in the California National Guard or an equivalent thereof, is still qualified to perform the duties of that position, and makes application within 40 days after release from service is to be considered as on leave of absence during that period and must be restored by the former employer to the former position or to a position of similar seniority, status, and pay without loss of retirement or other benefits, unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so, and cannot be discharged from the position without cause within one year after being restored to the position (Military and Veterans Code, Sec. 395.06(a), as amended by Ch. 60 (A. 1433), L. 2001, effective June 21, 2002).

Every officer and enlisted member who has left a part-time position in private employment for purposes of service mentioned above, receives a certificate of satisfactory service in the California National Guard or an equivalent thereof, is still qualified to perform the duties of that position, and makes application within five days after release from service must be considered as on leave of absence during that period and must be restored by the former employer to the former position, or to a position of similar seniority, status, and pay, if any exist, and cannot be discharged from the position without cause within one year after being restored to the position (Military and Veterans Code, Sec. 395.06(b), as amended by Ch. 60 (A. 1433), L. 2001, effective June 21, 2002).

Public employers. --Discrimination. --No officer or employee of the state, or of any county, city and county, municipal corporation, or district may discriminate against any officer, warrant officer or enlisted member of the military or naval forces of the state or of the United States because of that membership. No member of the military forces may be prejudiced or injured by any officer or employee of the state, or of any county, city and county, municipal corporation, or district with respect to that member's employment, appointment, position or status or be denied or disqualified for or discharged from that employment or position by virtue of membership or service in the military forces of California or of the United States (Sec. 394(b), as amended by Ch. 299 (A. 120), L. 2001).

Length of leave; training. --Public employees are entitled to a temporary military leave of absence as provided by federal law while engaged in military duty ordered for purposes of active military training, inactive duty training, encampment, naval cruises, special exercises or other like activity, provided that such duty period does not exceed 180 calendar days, including time involved in going to and returning from duty, and provided that paid military leave of absence is not required for periods of inactive duty training (Military and Veterans Code, Sec. 395, as amended by Ch. 928 (S. 1950), L. 1999, effective January 1, 2001).

County, city or district employees or officers in armed forces during war time or emergency. --Whenever the United States is engaged in war or whenever the Governor finds and proclaims that an emergency exists in preparing for the national defense, any employee or officer, other than an elected officer, of a county, city, political subdivision, school, irrigation, public district, or other local authority or public body whatsoever who enters the armed forces of the United States entitled to a leave of absence for service with such armed forces for the duration of the war or until the Governor finds and proclaims that the emergency no longer exists, and for 90 days thereafter, or until 90 days after the termination of such service (Sec. 395.4).

National Guard. --Public employees who are members of the National Guard are entitled to take an absence from their duties or service, without regard to the length of their public service, while engaged in the performance of ordered military or naval duty and while going to and returning from such duty, provided such duty is performed during such time as the Governor may have issued a proclamation of a state of extreme emergency or during such time as the National Guard may be on active duty. Such leaves cannot exceed the duration of such emergency (Sec. 395.05(a)).

An employee who is a member of the National Guard may be granted a leave for the period of active duty and for travel to and from such duty as specified by the National Guard during times the Governor has issued a proclamation of a state of extreme emergency or insurrection under the Military and Veterans Code or during such time as the National Guard may be on active duty (Sec. 19773).

Pay. --Public employees on temporary military leaves of absence for military duty ordered for purposes of active military training, inactive duty training, encampment, naval cruises, special exercises, or like activity as such member, provided that the period of ordered duty does not exceed 180 calendar days including time involved in going to and returning from the duty, but not for inactive duty such as scheduled reserve drill periods, and who have been in the service of the public agency from which leave is taken for a period of not less than one year immediately prior to the day on which the absence begins, are entitled to receive salary or compensation as such public employees for the first 30 calendar days of any such absence. Pay for such purposes must not exceed 30 days in any one fiscal year. In determining the one year of public agency service, all service of said public employees in the recognized military service is to be counted as public agency service (Military and Veterans Code, Sec. 395.01(a), as amended by Ch. 928 (S. 1950), L. 1999, effective January 1, 2001).

Notwithstanding Sec. 395.01(a) just above, a local public agency may, but is not required to, pay an employee during a period of inactive duty training (Military and Veterans Code, Sec. 395.01(b), as amended by Ch. 928 (S. 1950), L. 1999, effective January 1, 2001).

All officers and employees of a public agency who are on a military leave that is other than temporary and who have been in the service of such public agency for a period of not less than one year immediately prior to the date on which the absence begins are entitled to receive their salary or compensation for the first 30 calendar days while engaged in the performance of ordered military duty in the U.S. armed forces or a reserve component or in the federal National Guard or Naval Militia (Sec. 395.02).

Generally, no more than 30 calendar days' pay is allowed under the provisions of Sections 395.01(a) and 395.02, above, for any one military leave of absence or during any one fiscal year (Military and Veterans Code, Sec. 395.03, as amended by Ch. 928 (S. 1950), L. 1999, effective January 1, 2001).

When officers or employees in the National Guard are on a leave of absence during an emergency, as mentioned above, during such absence and while going to and returning from such duty, and for a period not to exceed 30 calendar days, the employees must receive their salary or compensation as such officers or employees and cannot be subjected by any person directly or indirectly by reason of such absence to any loss or diminution of vacation or holiday privilege or be prejudiced by reason of such absence with reference to promotion or continuance in office, employment, reappointment to office, or reemployment (Sec. 395.05(a)).

Under the State of Emergency proclaimed by Governor Davis on September 11, 2001, state workers called to National Guard duty will receive their regular state salary for up to 10 days of service. These 10 days are separate from the 30 days described above.

Benefits. --Any public employee in the service of a public agency for a period not less than one year immediately prior to the date when a military leave of absence begins is entitled to receive the same vacation, sick leave and holiday privileges and same rights and privileges to promotion, continuance in office, employment, reappointment or reemployment that the employee would have enjoyed had the employee not been absent on military leave. However, if the employee had not completed a probationary period in the public agency, that probation must be completed upon reinstatement as provided by law or rule of the agency. All recognized military service counts as public service for determining one year of service in a public agency (Military and Veterans Code, Sec. 395, as amended by Ch. 928 (S. 1950), L. 1999, effective January 1, 2001).

In addition to the benefits provided pursuant to Secs. 19775 and 19775.1, a state employee who, as a member of the California National Guard or a U.S. military reserve organization, is ordered to active duty by Presidential determination that it is necessary to augment the active forces for any operational mission, or when in time of national emergency declared by the President or otherwise authorized by law, shall have the benefits provided for below (Gov't Code, Sec. 19775.17(a), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002).

Any state employee to which Sec. 19775.17(a) above applies, while on active duty, shall receive from the state, for the duration of the event as authorized pursuant to Secs. 12302 and 12304 of Title 10 of the U.S. Code, but not to exceed 180 calendar days, as part of his or her compensation both of the following (Gov't Code, Sec. 19775.17(b), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002):

(1) The difference between the amount of his or her military pay and allowances and the amount the employee would have received as a state employee, including any merit raises that would otherwise have been granted during the time the individual was on active duty. The amount an employee, as defined in Sec. 18526, would have received as a state employee, including any merit raises that would otherwise have been granted during the time the individual was on active duty, shall be determined by the Department of Personnel Administration.

(2) All benefits that he or she would have received had he or she not served on active duty unless the benefits are prohibited or limited by vendor contracts.

Benefits provided under item (1) just above shall only be provided to a state employee who was not eligible to participate in a federally sponsored income protection program for National Guard personnel or military reserve personnel, or both, called into active duty, as determined by the Department of Personnel Administration. For a state employee eligible to participate in a federally sponsored income protection program, and whose monthly salary as a state employee was higher than the sum of his or her military pay and allowances and the maximum allowable benefit under the federally sponsored income protection program, the state employee shall receive the amount payable under item (1) just above, but that amount shall be reduced by the maximum allowable benefit under the federally sponsored income protection program. For individuals who elected the federally sponsored income protection program, the state shall reimburse for the cost of the insurance premium for the period of time on active duty, not to exceed 180 calendar days (Gov't Code, Sec. 19775.17(d), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002).

For purposes of this section, "state employee" means an employee as defined in Sec. 18526 or an officer or employee of the legislative, executive, or judicial department of the state (Gov't Code, Sec. 19775.17(e), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002).

This section does not apply to any state employee entitled to additional compensation or benefits pursuant to Sec. 19775.16 or Sec. 19775.18 of the Government Code, or Sec. 395.08 of the Military and Veterans Code (Gov't Code, Sec. 19775.17(f), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002).

In addition to the benefits provided pursuant to Secs. 19775 and 19775.1, a state employee who, as a member of the California National Guard or a U.S. military reserve organization, is ordered to active duty on and after September 11, 2001, as a result of the War on Terrorism, shall have the following benefits (Gov't Code, Sec. 19775.18(a), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002; and by Ch. 902, L. 2001, effective January 1, 2003).

Any state employee to which Sec. 19775.18(a) above applies, while on active duty, shall receive from the state, for the duration of the event known as the War on Terrorism, as authorized pursuant to Secs. 12302 and 12304 of Title 10 of the U.S. Code, but not to exceed 365 calendar days, as part of his or her compensation both of the following (Gov't Code, Sec. 19775.18(b), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002; and by Ch. 902, L. 2001, effective January 1, 2003):

(2) All benefits that he or she would have received had he or she not served on active duty unless the benefits are prohibited or limited by vendor contracts.

Benefits provided under item (1) just above shall only be provided to a state employee who was not eligible to participate in a federally sponsored income protection program for National Guard personnel or military reserve personnel, or both, called into active duty, as determined by the Department of Personnel Administration. For a state employee eligible to participate in a federally sponsored income protection program, and whose monthly salary as a state employee was higher than the sum of his or her military pay and allowances and the maximum allowable benefit under the federally sponsored income protection program, the state employee shall receive the amount payable under item (1) just above, but that amount shall be reduced by the maximum allowable benefit under the federally sponsored income protection program. For individuals who elected the federally sponsored income protection program, the state shall reimburse for the cost of the insurance premium for the period of time on active duty, not to exceed 365 calendar days. The governor may, by executive order (see below), extend this period of time by no more than an additional 365 calendar days (Gov't Code, Sec. 19775.18(d), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002; and by Ch. 902 (S. 1801), L. 2001, effective January 1, 2003).

For purposes of this section, "military pay and allowances" does not include hazardous duty pay, hostile fire pay, or imminent danger pay. A state employee is entitled to retain these and any other special and incentive pay provided by the federal government (Gov't Code, Sec. 19775.18(e)(1), as amended by Ch. 287 (A. 276), L. 2005, enacted September 22, 2005).

For purposes of this section, "state employee" means an employee as defined in Sec. 18526 or an officer or employee of the legislative, executive, or judicial department of the state (Gov't Code, Sec. 19775.18(e)(2), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002; and by Ch. 902 (S. 1801), L. 2001, effective January 1, 2003).

This section does not apply to any state employee entitled to additional compensation or benefits pursuant to Sec. 19775.16 or Sec. 19775.17 of the Government Code, or Sec. 395.08 of the Military and Veterans Code (Gov't Code, Sec. 19775.18(f), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002; and by Ch. 902 (S. 1801), L. 2001, effective January 1, 2003).

This section shall not apply to any active duty served after the close of the War on Terrorism (Gov't Code, Sec. 19775.18(g), as amended by Ch. 5 (S. 711), L. 2001, effective February 13, 2002; and by Ch. 902 (S. 1801), L. 2001, effective January 1, 2003).

Any state employee called to active duty as a result of the War on Terrorism shall receive the full compensation and benefits provided by Gov't Code Sec. 19775.18 (above), including the additional 365 days provided by that law. Where appropriate, the compensation and benefits authorized by Gov't Code Sec. 19775.18 shall be applied retroactively to state employees who served on active duty in the War on Terrorism for more than 365 days before January 1, 2003 (Executive Order D-65-02, December 5, 2002).

Under the Public Employees' Medical and Hospital Care Act, an employee of a contracting agency and his or her family members may continue enrollment in a health benefits plan if the employee is granted a leave of absence by the contracting agency for military duty. The coverage may continue for up to one year (Gov't Code, Sec. 22816.1, as added by Ch. 271 (A. 1606), L. 2003, effective September 4, 2003).

Reemployment after temporary duty. --Upon termination of temporary military duty, an employer must restore an employee to the employee's former office or position and status, in the same locality, office, board, commission, agency, or institution. If the position or office has been abolished or ceases to exist during the employee's duty, that person is entitled to be reinstated to a position of like seniority, status, and pay if such a position exists. If no such position exists, the employee is entitled to the same rights and privileges as if the employee had occupied the position when it ceased to exist and had not taken temporary military leave of absence (Military and Veterans Code, Sec. 395, as amended by Ch. 928 (S. 1950), L. 1999, effective January 1, 2001).

Reemployment after resignation. --In the event that any public officer or employee has resigned or resigns from office or employment to serve or to continue to serve in the armed forces of the United States or in the armed forces of California, that person has a right to return to and reenter the office or employment prior to the time at which the term of office or employment would have ended if the officer or employee had not resigned, on serving a written notice to that effect upon the authorized appointing power or, if there is no authorized appointing power, upon the officer or agency having power to fill a vacancy in the office or employment, within six months of the termination of the officer's or employee's active service with the armed forces. The right to return and reenter upon the office or position cannot extend to or be granted to any public officer or employee who fails to return to and reenter upon that person's office or position within 12 months after the first date upon which the person could terminate or could cause to have terminated active service with the armed forces of the United States or of the militia of California (Sec. 395.3).

The right of reentry into public office or employment provided for above includes the right to be restored to the civil service status as the officer or employee would have if the person had not so resigned. No other person can acquire civil service status in the same position so as to deprive the officer or employee of the right to restoration (Sec. 395.3).

This provision does not apply to any public officer or employee to whom the right to reenter public office or employment after service in the armed forces has been granted by any other provision of law (Sec. 395.3).

Reemployment following service in the armed forces during war or emergency. --Notwithstanding any other provision of law to the contrary, any officer or employee of the state not subject to provisions in the Government Code, or any public officer, deputy, assistant, or employee of any city, county, city and county, school district, water district, irrigation district, or any other district, political corporation, political subdivision, or governmental agency thereof who, in time of war or national emergency as proclaimed by the President or Congress, or when any of the armed forces of the United States are serving outside of the United States or their territories pursuant to order or request of the United Nations, or while any national conscription act is in effect, leaves or has left an office or position prior to the end of the war, or the termination of the national emergency or during the effective period of any order or request of this type of the United Nations or prior to the expiration of the national conscription act, to join or joins the armed forces of the United States or, being a member of any reserve force or corps of any of the armed forces of the United States or of the militia of California, is or was ordered to duty by competent military authority and served or serves in compliance with those orders, has a right, if released, separated or discharged under conditions other than dishonorable, to return to and reenter upon the office or position within six months after the termination of active service with the armed forces, but not later than six months after the end of the war or national emergency or military or police operations under the United Nations or after the Governor finds and proclaims that, for the purposes of this section, the war, national emergency, or United Nations military or police operation no longer exists, or after the expiration of the national conscription act, if the elected or appointed term has not ended during such absence (Sec. 395.1(a)).

The right to return to and reenter upon the office or position must not extend to or be granted to any officer or employee covered under these provisions (as specified above) who fails to return to and reenter the respective office or position within 12 months after the first date upon which the officer or employee could terminate or could cause to have terminated active service with the armed forces of the United States or of the California militia. Such officer or employee also has a right to return to and reenter upon the office or position during terminal leave from the armed forces and prior to such discharge, separation or release (Sec. 395.1(a)).

Upon return and reentry to the office or employment, the officer or employee maintains all of the rights and privileges in, connected with, or arising out of the office or employment that would have been enjoyed had no such absence occurred. However, the officer or employee is not entitled to sick leave, vacation or salary for the time during such military leave (Sec. 395.1(a)).

If the office or position has been abolished or otherwise has ceased to exist during the military leave of absence, the officer or employee must be reinstated in a position of like seniority, status and pay if such a position exists, or to a comparable vacant position for which the person is qualified (Sec. 395.1(b)).

Any officer or employee other than a probationer who is restored to office or employment pursuant to California's military leave provisions cannot be discharged from that office or position without cause within one year after the restoration, and is entitled to participate in insurance or other benefits offered by the employing governmental agency pursuant to established rules and practices relating to those officers or employees on furlough or leave of absence in effect at the time the officer or employee left his or her office or position to join the armed forces of the United States (Sec. 395.1(c)).

Any enlisted person who was involuntarily ordered to active duty (other than for training) for a stated duration cannot lose any right or benefit conferred under this code if the officer or employee voluntarily elects to complete the period of that duty (Sec. 395.1(d)).

School district employees. --In addition to the bene

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Military and Emergency Services Leave Law Summaries