Military and Emergency Services Leave Law Summaries

Military and Emergency Services Leave Law Summaries

Colorado, Military and Emergency Services Leave Law Summaries

Colorado's military leave law is codified in the Colorado Revised Statutes at Title 28, Article 3, Part 6 (for full text, see Wages-Hours ¶6-58,001 et seq. ). Disaster services leave is located at Title 24, Article 50 (for full text, see Wages-Hours ¶6-58,201 ). There are also provisions relating to volunteer firefighters.

COVERAGE

Both private and public employers are covered by Colorado's military leave law.

WHAT THE EMPLOYER MUST DO

Military leave

Private employers.-Training.- Any person who is a duly qualified member of the Colorado national guard or the reserve forces of the United States who in order to receive military training with the armed forces of the United States, not to exceed 15 days in any one calendar year, leaves a position other than a temporary position in the employ of an employer, and who gives evidence of the satisfactory completion of such training, and who is still qualified to perform the duties of such position is entitled to be restored to the employee's previous or a similar position in the same status, pay, and seniority. Such period of absence for military training is to be considered as an absence with leave and without pay (Sec. 28-3-609, as amended by Ch. 181 (S. 99), L. 2002, effective May 24, 2002).

Absence for military training will in no way affect the employee's right to receive normal vacation, sick leave, bonus, advancement, and other advantages of employment normally anticipated in the employee's particular position (Sec. 28-3-610, as amended by Ch. 181 (S. 99), L. 2002, effective May 24, 2002).

Active service.- A private employee who is a duly qualified member of the Colorado national guard who leaves or who is absent from his or her employment, regardless of the length of such absence, in order to engage in active service for state purposes (Sec. 28-3-610.5, as added by H. 1083, L. 1997, effective July 1, 1997):

1. is entitled to the reemployment rights for members described in Sec. 28-3-609 above, as long as the member otherwise meets the requirements of that section; and

2. retains his or her right to the employee benefits described in Sec. 28-3-610 above.

Public employers.-Length of leave.- Any officer or employee of the state or of any political subdivision, municipal corporation, or other public agency of the state who is a member of the national guard or any other component of the military forces of the state organized or constituted under state or federal law or who is a member of the reserve forces of the United States, organized or constituted under federal law is entitled to leave of absence from public office or employment without loss of pay, seniority, status, efficiency rating, vacation, sick leave, or other benefits for the time engaged with such organization or component in training or active service ordered or authorized by proper authority pursuant to law, whether for state or federal purposes, but not exceeding 15 days in any calendar year. Such leave is on the condition the required military service is satisfactorily performed, which is presumed as such unless the contrary is established (Sec. 28-3-601, as amended by Ch. 181 (S. 99), L. 2002, effective May 24, 2002).

Such leave will not be allowed unless the officer or employee returns to the public position immediately on being relieved from such military service and not later than the 15 days prescribed above, unless prevented from so returning by physical or mental disability or other cause not due to the employee's own fault, or is required by proper authority to continue in such military service beyond the time limited for such leave (Sec. 28-3-601, as amended by Ch. 181 (S. 99), L. 2002, effective May 24, 2002).

Extended leaves.- If any such officer or employee is required by proper authority to continue in such military service beyond the time for which leave with pay is allowed, the employee is entitled to a leave of absence from public office or employment without pay for all such additional service with right of reinstatement thereafter upon the same conditions as provided under provisions for reinstatement after active service in time of war or other emergency (Sec. 28-3-602, as amended by Ch. 181 (S. 99), L. 2002, effective May 24, 2002).

Leave during war time or emergency.- Subject to the conditions prescribed under the state's military leave law, any officer or employee of the state or of any political subdivision, municipal corporation, or other public agency of the state who engages in active military service in time of war or other emergency declared by proper authority of the state or the United States, for which leave is not otherwise allowed by law, is entitled to leave of absence from public office or employment without pay during such service with right of reinstatement (Sec. 28-3-603, as amended by Ch. 181 (S. 99), L. 2002, effective May 24, 2002).

Reemployment.- Except as otherwise provided, upon the completion of military service, officers and employees must be reinstated in the public position held at the time of entry into such service or must be placed into a public position of like seniority, status, and pay, if such is available at the same salary that the officer or employee would have received if leave had not been taken, upon the following conditions (Sec. 28-3-604(1), as amended by Ch. 181 (S. 99), L. 2002, effective May 24, 2002):

1. that the position has not been abolished or that the term thereof, if limited, has not expired;

2. that the officer or employee is not physically or mentally disabled from performing the duties of such position;

3. that the officer or employee makes written application for reinstatement to the appointing authority within 90 days after discharge from hospitalization or medical treatment that immediately follows the termination of and results from such service, but such application must be made within one year and 90 days after termination of such service, notwithstanding such hospitalization or medical treatment;

4. that the officer or employee submits an honorable discharge or other form of release by proper authority indicating that military service was satisfactory.

Upon such reinstatement, the officer or employee has the same rights with respect to accrued and future seniority status, efficiency rating, vacation, sick leave, and other benefits as if the person had been actually employed during the time of such leave. No officer or employee so reinstated can be removed or discharged within one year thereafter, except for cause and after notice and hearing; but this does not operate to extend a term of service or office limited by law (Sec. 28-3-604(2), as amended by Ch. 181 (S. 99), L. 2002, effective May 24, 2002).

Elected or appointed officers.- Any public officer elected or appointed for a definite term who, before the expiration of such term, returns from military service under leave of absence without pay, in lieu of making written application for reinstatement as provided above, may file in the same office where the officer's official oath is filed, within 45 days after termination of such military service, a verified certificate that the officer has complied with the conditions for reinstatement, upon which the officer will have resumed office (Sec. 28-3-605, as amended by Ch. 181 (S. 99), L. 2002, effective May 24, 2002).

Post-September 11, 2001, duty.- The governor has authorized financial relief to state employees called to active military duty in connection with the September 11, 2001, terrorist attacks. The governor has requested executive directors from each of the state's 19 departments, including presidents of colleges and universities, to grant up to three months' administrative leave to state employees called to active military service in connection with these attacks. This revised administrative leave policy permits department heads to pay for the difference in base salary between what the employee would have earned had he or she remained in state employment instead of being called to active duty in a lower-paying position. Currently, the state allows an employee serving as a reservist in the armed forces up to 15 days of paid leave for training exercises. There is no provision for reservists who are called up for duty indefinitely to receive their salary after that two-week leave is exhausted. The revised policy extends that pay for up to 90 days (Governor's Press Release, December 11, 2001).

Discrimination.- No person shall discriminate against any officer or enlisted person of the military forces of the state because of the officer or enlisted person's membership therein (Sec. 28–3–506(1)(a), as amended by Ch. 181 (S. 99), L. 2002, effective July 1, 2002).

No employer or officer or agent of any corporation, company, or firm or other person shall (Sec. 28–3–506(1)(b), as amended by Ch. 181 (S. 99), L. 2002, effective July 1, 2002):

1. refuse to hire any person for or discharge any person from employment because of the person's status as an officer or enlisted person of the military forces of the state; or

2. hinder or prevent the person from performing any military service he or she may be called upon to perform by proper authority; or

3. dissuade any person from enlistment in the said national guard by threat or injury to such person, if he or she so enlists, in respect to the person's employment, trade, or business.

Any person violating the discrimination provisions just above is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $5,000. In addition, the aggrieved person may bring an action at law for damages or apply to the district court for such equitable relief as is just and proper under the circumstances (Sec. 28–3–506(2), as amended by Ch. 181 (S. 99), L. 2002, effective July 1, 2002).

Civil air patrol.- An employer shall not discriminate against or discharge from employment any member of the civil air patrol because of such membership and shall not hinder or prevent a member from performing during any civil air patrol mission for which a member is entitled to leave (Sec. 28-1-103, as enacted by Ch. 174 (H.B. 1097), L. 2008, effective Aug. 5, 2008).

Interaction with federal law. Nothing in Colorado's military leave law shall be construed as restricting or abrogating any right available to any officer or enlisted person of the military forces of the state under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) (Sec. 28–3–612, as added by Ch. 181 (S. 99), L. 2002, effective May 24, 2002).

Emergency services leave

Disaster services leave.- An employee certified as a disaster service volunteer of the American Red Cross may be granted paid leave for specialized disaster relief services. The leave may not exceed five days for a local disaster or 15 days for a national disaster in a 12-month period. Leave may not be accumulated. During this period of leave, an employee is not considered an employee for purposes of Colorado's workers' compensation law (Sec. 24-50-104).

Volunteer firefighters.- An employer shall not terminate an employee who is a volunteer firefighter and who fails to report to work because the employee has responded to an emergency summons if the employee provides the employer with a written statement from the chief of the fire department that the employee's absence was due to the response (Sec. 31-30-1131, as amended by S. 116, L. 2008).

An employer shall not terminate an employee who is a volunteer firefighter and who leaves work to respond to an emergency summons, if (Sec. 31-30-1131, as amended by S. 116, L. 2008):

1. The employer does not deem the employee to be essential to the operation of the employer's daily enterprise;

2. The employer has previously received written documentation from the fire chief of the employee's fire department notifying the employer of the employee's status as a volunteer firefighter;

3. The emergency is within the response area of the employee's fire department and is of such magnitude that the emergency summons issued by the fire chief requires all firefighters to respond; and

4. The chief of the employee's fire department provides the employer with a written statement verifying the time, date, and duration of the employee's response.

An employer may deduct time lost from employment caused by a response to an emergency summons from the wages of an employee who is a volunteer firefighter (Sec. 31-30-1131, as amended by S. 116, L. 2008).

Notwithstanding the provisions of this section, if a volunteer firefighter is called to an emergency pursuant to Part 22 of Article 32 of Title 24, C.R.S., the provisions of Sec. 24-32-2225 or 24-32-2226, C.R.S., shall control regarding the volunteer firefighter's absence or leave from work. Under no circumstances shall a volunteer firefighter's leave exceed the amount allowed pursuant to Sec. 24-32-2225 or 24-32-2226, C.R.S. (Sec. 31-30-1131, as amended by S. 116, L. 2008).

DEADLINES

Reemployment.- Public officers or employees seeking reemployment following hospitalization or medical treatment must apply in writing to the appointing authority within 90 days after discharge from such hospitalization or medical treatment. Such application must be made within one year and 90 days after termination of such service (Sec. 28-3-604).

In lieu of a written application, elected or appointed officers seeking reinstatement following a military leave of absence may file a certificate of compliance with conditions for reinstatement in the office where the official oath is filed within 45 days after termination of military service (Sec. 28-3-605).

PENALTIES

Any employer violating Colorado's military leave law is guilty of a misdemeanor and, upon conviction, shall be punished by a fine or not more than $5,000. Additionally, the employee may bring an action at law for damages and reasonable attorney fees for such noncompliance or apply to the district court for equitable relief and reasonable attorney fees as are appropriate (Sec. 28-3-611, as amended by Ch. 181 (S. 99), L. 2002, effective May 24, 2002).

See also WHAT THE EMPLOYER MUST DO, above.