Military and Emergency Services Leave Law Summaries
Kansas, Military and Emergency Services Leave Law Summaries
Kansas' military leave law is codified in the Kansas Statutes Annotated at Chapter 44, Article 7 (for full text, see Wages-Hours ¶17-58,004); and at Chapter 48, Article 2 (for full text, see Wages-Hours ¶17-58,001). Additionally, Chapter 137, L. 1995, effective July 1, 1996, enacted military leave provisions. Disaster service leave is located at Chapter 75 (for full text, see Wages-Hours ¶17-58,201).
COVERAGE
Both private and public employers are covered by Kansas' military leave laws.
EXCEPTIONS
Reemployment.- An employer or an employer's successor in interest is not required to reemploy a person as described below if (Sec. 1(g), Ch. 137, L. 1995, effective July 1, 1996):
the circumstances of the employer or the employer's successor in interest have so changed as to make reemployment impossible or unreasonable;
reemployment of the person would impose an undue hardship on the employer or the employer's successor in interest; or
the employment from which the person leaves to serve in military duty is for a brief, nonrecurrent period and there is no reasonable expectation that the employment will continue indefinitely or for a significant period.
WHAT THE EMPLOYER MUST DO
Military leave
National guard.- Commissioned officers and enlisted persons of the Kansas national guard must attend an annual muster and camp of instruction, unless regularly excused by competent authority. When under exclusive state jurisdiction, camps of instruction are for a period of not less than five days nor more than 10 days. When such camp of instruction is in connection with and a part of an encampment of militia and the regular army of the United States, it may be extended beyond the limit of 10 days (Sec. 48-222).
Compensation/health insurance.- When an officer or enlisted person of the Kansas national guard is ordered by the governor to perform active state service, the person must receive pay and allowances from the state. The minimum pay and allowances may not be less than that of pay grade E-6 with six years of experience. During any period or consecutive periods of state active duty in excess of 30 days, an officer or enlisted member of Kansas national guard shall be entitled to reimbursement of the officer's or member's cost of privately-purchased or employer-provided health insurance for such officer or member and such officer's or member's family when the policy of insurance was in force prior to such officer or member being ordered to perform active state service. Such reimbursement shall not exceed the amount paid for premiums for individual or family health insurance coverage under the state employees group health insurance plan. The reimbursement shall be treated as an allowance and paid by the state and shall be considered as a cost of state active duty. If part of the amount is paid by the United States, only the balance will be paid from state funds (Sec. 48-225, as amended by Ch. 85 (S. 627), L. 2001, effective from and after its publication in the Kansas register).
For taxable years commencing after December 31, 2001, the employer of any officer or enlisted member of the Kansas national guard shall be allowed a credit against the income tax imposed by the Kansas income tax in an amount equal to amounts paid by such employer for health insurance for such officer or member and such officer's or member's family during any period or consecutive periods of state active duty in excess of 30 days if such employer is not otherwise required to pay for such insurance (Sec. 2(a), Ch. 85 (S. 627), L. 2001, effective from and after its publication in the Kansas register).
The credit allowed by this section shall not exceed the amount of tax imposed under the Kansas income tax act reduced by the sum of any other credits allowable pursuant to law. If the amount of the credit allowed by Sec. 2(a) just above exceeds the taxpayer's income tax liability imposed under the Kansas income tax act, such excess amount may be carried over for credit in the same manner in the succeeding taxable years until the total amount of such credit is used (Sec. 2(b), Ch. 85 (S. 627), L. 2001, effective from and after its publication in the Kansas register).
For taxable years commencing after December 31, 2001, on or before December 15, 2002, and each ensuing year, upon certification by the adjutant general to the director of accounts and reports of the amount that an employer, who is a political subdivision of the state, of any officer or enlisted member of the Kansas national guard paid for health insurance for such officer or member and such officer's or member's family during any period or consecutive periods of state active duty in excess of 30 days, if such employer is not otherwise required to pay for such insurance and upon such certification, the director of accounts and reports shall transfer from the state general fund to the general fund of such employer an amount equal to the amount paid for such health insurance. Each officer and enlisted member of the national guard requesting reimbursement under this section shall present proof of such health insurance cost on forms furnished by the adjutant general (Sec. 2(c), Ch. 85 (S. 627), L. 2001, effective from and after its publication in the Kansas register).
Reemployment.- Any person who is called or ordered to active duty by the state, whether such person is a member of the Kansas national guard, Kansas air national guard, the Kansas state guard or other military force of Kansas, and who gave notice of the call or order to the person's employer, must be reinstated in or restored to the position of employment, except a temporary position, that the person held at the time the person was called to duty. Reinstatement is conditioned upon satisfactory performance of and release and return from military duty or recovery from disease or injury resulting from the military duty, under honorable conditions (Sec. 1(a), Ch. 137, L. 1995, effective July 1, 1996).
The person must report to the place of employment within 72 hours after release from duty or recovery from disease or injury resulting from the duty, and the employer or the employer's successor in interest, whether an agency of the state, a political subdivision of the state, or a private employer, must reinstate or restore the person in the same position that the person left at the time of the call to duty at no less compensation than that which the person was receiving at the time of the call to duty, or to a position of like seniority, status, and pay (Sec. 1(a), Ch. 137, L. 1995, effective July 1, 1996).
If the person is not qualified to perform the duties of the same position by reason of disability sustained during the person's call to duty, but is qualified to perform another position in the employ of the employer or the employer's successor, the employer or the employer's successor must employ the person in another position, the duties of which the person is qualified to perform, that will provide the same or similar seniority, status and pay (Sec. 1(a), Ch. 137, L. 1995, effective July 1, 1996).
Any person who is restored to the person's position as described above will be considered as having been on temporary leave of absence during the period of the call to active duty, and must be restored without loss of seniority. The person will be entitled to participate in any benefits offered by the employer pursuant to established rules and practices relating to employees on leave of absence in effect with the employer at the time of call to duty. Also, the person must not be discharged from the person's position without cause within one year after restoration to the position (Sec. 1(b), Ch. 137, L. 1995, effective July 1, 1996).
If two or more persons who are entitled to be restored to a position left the same position in order to enter the state call to duty, the person who left the position first has the prior right to be restored (Sec. 1(e), Ch. 137, L. 1995, effective July 1, 1996).
Rejection or delay from service.- An individual is not to be disqualified for benefits if the person left work to enlist in the armed forces of the United States but was rejected or delayed from entry (Sec. 44-706).
Emergency services leave
Disaster services leave.- An employee of a state agency who is a certified disaster service volunteer of the American Red Cross may be granted leave from work with pay for not more than 20 working days in any 12-month period to participate in specialized disaster relief services for the American Red Cross, upon the request of the American Red Cross for the services of that employee and upon the approval of that employee's state agency, without loss of seniority, pay, vacation leave, compensatory time, personal vacation days, sick leave or earned overtime accumulation. The state agency must compensate an employee granted disaster service volunteer leave at the employee's regular rate of pay for those regular work hours during which the employee is absent from work.
An employee on disaster service volunteer leave is not considered to be an employee of the state for purposes of workers' compensation or for purposes of the Kansas Tort Claims Act. Disaster service volunteer leave will be granted only for services related to a disaster occurring within the state of Kansas and states contiguous to Kansas (Sec. 75-5548).
Executive order.- State of Kansas employees called by the American Red Cross to serve in relief efforts resulting from the September 11, 2001, attacks are eligible for disaster leave under Sec. 75-5548 (see just above) (Executive Order No. 01-08, effective November 16, 2001).
Employment Discrimination
Private and public employment.- No employer may refuse permission to any employee who is a member of the Kansas national guard to attend drill or annual muster, or perform active service, when so ordered by the commander in chief; and no employer shall refuse, or shall discharge an employee from service or shall in any way punish an employee for being absent in the performance of military duty, when so ordered by competent authority (Sec. 48-222).
Also, no employer may (Sec. 44-1126):
discriminate against a member of the military with respect to employment, or employment position or status, because of membership or service in the military;
deny employment to any member of the military, or disqualify for or discharge from employment any member of the military, because of membership or service in the military; or
discharge from employment any member of the military because of the member's performance of emergency military duty.
Penalties. An employer violating Kansas' anti-discrimination provision is guilty of a misdemeanor punishable by a fine of not less than five dollars ($5) nor more than fifty dollars ($50) for each offense (Sec. 48-222). If a court finds that a violation has occurred, the court may award to the plaintiff actual damages, or $500, whichever is greater, for each violation (Sec. 44-1127).
ENFORCEMENT
The Adjutant General will investigate the claim by a person of a right or benefit described above and attempt to resolve the claim by making reasonable efforts to ensure that the employer or employer's successor in interest complies with the reemployment provisions. If such efforts are not successful, the Adjutant General will notify the person of the results of the investigation and the person's entitlement to proceed as described below (Sec. 1(f), Ch. 137, L. 1995, effective July 1, 1996).
An application on behalf of a person claiming to be entitled to any right or benefit as described above may be made to the Attorney General. If the Attorney General is reasonably satisfied that the person is entitled to the right or benefit sought, the Attorney General may appear on behalf of and act as attorney for the person on whose behalf the application is submitted, and may commence an action for appropriate relief in the district court of the county where the employer, or successor in interest to the employer, maintains a place of business (Sec. 1(d), Ch. 137, L. 1995, effective July 1, 1996).
If the court determines that the employer or the employer's successor in interest has failed to comply with the reemployment provisions, the court may order the employer or successor in interest to (Sec. 1(d), Ch. 137, L. 1995, effective July 1, 1996):
comply with the provisions described herein; and
compensate the person for any loss of wages or benefits suffered by reason of the failure of the employer or the employer's successor in interest to comply with such provisions.
Additionally, the court may order the employer or successor in interest to pay the person an additional amount equal to the amount authorized in item (2) above if the court determines that the failure to comply was willful (Sec. 1(d), Ch. 137, L. 1995, effective July 1, 1996).
PENALTIES
It is a misdemeanor for any employer to refuse permission to any employee who is a member of the Kansas national guard to attend drill or annual muster, or perform active service, when so ordered by the commander in chief. Upon conviction, any employer who refuses or discharges an employee from service or in any way punishes an employee for being absent in the performance of military duty, when so ordered by competent authority, is punishable by a fine of not less than $5 nor more than $50 for each offense (Sec. 48-222).
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