Military and Emergency Services Leave Law Summaries
Montana, Military and Emergency Services Leave Law Summaries
The Montana Military Service Employment Rights Act took effect April 25, 2005 (S. 118, L. 2005). The state's disaster services leave law is located in the Montana Code Annotated at Chapter 2.
COVERAGE
Both private and public employers are covered by the Montana Military Service Employment Rights Act (Sec. 3, S. 118, L. 2005, effective April 25, 2005).
WHAT THE EMPLOYER MUST DO
Military leave
Montana Military Service Employment Rights Act.-Rights under federal law.- A person ordered to federally funded military duty is entitled to all of the employment and reemployment rights and benefits provided pursuant to the federal Uniformed Services Employment and Reemployment Rights Act of 1994, and other applicable federal law (Sec. 4, S. 118, L. 2005, effective April 25, 2005).
Prohibition against employment discrimination.- An employer may not deny employment, reemployment, reinstatement, retention, promotion, or any benefit of employment or obstruct, injure, discriminate against, or threaten negative consequences against a person with regard to employment because of the person's membership, application for membership, or potential application for membership in the state organized militia or because the person may exercise or has exercised a right or may claim or has claimed a benefit under the Montana Military Service Employment Rights Act (Sec. 5, S. 118, L. 2005, effective April 25, 2005).
Entitlement to leave of absence.- A member ordered to state active duty is entitled to a leave of absence from the person's employment during the period of that state active duty. A leave of absence for state active duty may not be deducted from any sick leave, vacation leave, military leave, or other leave accrued by the member unless the member desires the deduction (Sec. 6, S. 118, L. 2005, effective April 25, 2005).
Right to return to employment without loss of benefits.- Subject to the provisions of this section, after a leave of absence for state active duty, a member is entitled to return to employment with the same seniority, status, pay, health insurance, pension, and other benefits as the member would have accrued if the member had not been absent for the state active duty (Sec. 7, S. 118, L. 2005, effective April 25, 2005).
If a member was a probationary employee when ordered to state active duty, the employer may require the member to resume the member's probationary period from the date when the member's leave of absence for state active duty began (Sec. 7, S. 118, L. 2005, effective April 25, 2005).
An employer may decide whether or not to authorize the member to accrue sick leave, vacation leave, military leave, or other leave benefits during the member's leave of absence for state active duty. However, the member may not be provided with lesser leave accrual benefits than are provided to all other employees of the employer in a similar but nonmilitary leave status (Sec. 7, S. 118, L. 2005, effective April 25, 2005).
An employer's health plan must provide that (Sec. 7, S. 118, L. 2005, effective April 25, 2005):
a member may elect to not remain covered under the employer's health plan while the member is on state active duty but that when the member returns, the member may resume coverage under the plan without the plan considering the employee to have incurred a break in service; and
a member may elect to remain on the employer's health plan while the member is on state active duty without being required to pay more than the regular employee share of the premium, except as provided just below.
If a member's state active duty qualifies the member for coverage under the state of Montana's health insurance plan as an employee of the department of military affairs, the employer's health plan may require the member to pay up to 102% of the full premium for continued coverage (Sec. 7, S. 118, L. 2005, effective April 25, 2005).
A health insurance plan covering an employee who is a member serving on state active duty is not required to cover any illness or injury caused or aggravated by state active duty (Sec. 7, S. 118, L. 2005, effective April 25, 2005).
If the member is a state employee prior to being ordered to state active duty, the member does not become qualified as an employee of the department of military affairs for the purposes of health plan coverage until the member's state active duty qualifies the member to be considered an employee of the department of military affairs pursuant to Sec. 2-18-701 (Sec. 7, S. 118, L. 2005, effective April 25, 2005).
An employer's pension plan must provide that when a member returns to employment from state active duty (Sec. 7, S. 118, L. 2005, effective April 25, 2005):
the member's period of state active duty may constitute service with the employer or employer's maintaining the plan for the purposes of determining the nonforfeitability of the member's accrued benefits and for the purposes of determining the accrual of benefits under the plan; and
if the member elects to receive credit and makes the contributions required to accrue the pension benefits that the member would have accrued if the member had not been absent for the state active duty, then the employer shall pay the amount of the employer contribution that would have been made for the member if the member had not been absent.
An employer is not obligated to allow the member to return to employment after the member's absence for state active duty if (Sec. 7, S. 118, L. 2005, effective April 25, 2005):
the member is no longer qualified to perform the duties of the position, subject to the provisions of Sec. 49-2-303 (see ¶27-2500 ) prohibiting employment discrimination because of a physical or mental disability.
the member's position was temporary and the temporary employment period has expired.
the member's request to return to employment was not done in a timely manner.
the employer's circumstances have changed so significantly that the member's continued employment with the employer cannot reasonably be expected; or
the member's return to employment would cause the employer an undue hardship.
Procedure for filing a complaint.- A person entitled to rights or benefits under the Montana Military Service Employment Rights Act and who claims that an employer has failed or is about to fail to comply with the provisions of the law may file a written complaint with the Department of Labor and Industry within 15 days after the member discovered the actions or practice alleged to constitute an employer's failure or imminent failure to comply with the provisions of the law (Sec. 10, S. 118, L. 2005, effective April 25, 2005).
Assistance, investigation, and enforcement of complaints.- The Department of Labor and Industry shall provide assistance to any person with respect to the employment rights and benefits to which the person is entitled pursuant to the Montana Military Service Employment Rights Act. The department shall investigate each complaint submitted. The department shall initiate the investigation within 30 days of receiving the complaint. Within 60 days of receiving the complaint, the department shall make a finding about whether a violation of rights or benefits provided in the law has occurred or is about to occur and shall notify the complainant and the employer in writing of the finding. If it is found that a violation occurred or is about to occur, the department shall attempt to resolve the matter by making a reasonable effort to provide redress to the complainant and ensure that the employer complies with the law. If the department fails to resolve the matter within 90 days of receiving the complaint, the department shall notify the complainant of the complainant's right to request that the department refer the complaint to the state attorney general (Sec. 11, S. 118, L. 2005, effective April 25, 2005).
Enforcement and investigative powers of the Department of Labor and Industry.- To carry out its enforcement and investigative duties under the Montana Military Service Employment Rights Act, the Department of Labor and Industry has the power to (Sec. 12, S. 118, L. 2005, effective April 25, 2005):
enter and inspect the places, question the employees, and investigate the facts, conditions, or matters that the department considers appropriate to determine whether an employer has violated or is about to violate the law or that will aid the department in the enforcement of the law; and
administer oaths, examine witnesses, issue subpoenas, compel the attendance of witnesses, inspect papers, books, accounts, records, payrolls, documents, and testimony, and take depositions and affidavits relevant to the department's duties under the law.
Referral of complaint to state attorney general.- A complaint that could not be successfully resolved as described just above must be referred by the Department of Labor and Industry to the state attorney general if the complainant so requests (Sec. 13, S. 118, L. 2005, effective April 25, 2005).
Independent lawsuit.- Nothing in the Montana Military Service Employment Rights Act may be construed as infringing on a person's right to file an independent lawsuit to seek relief as a private party from an alleged violation of the law. However, if a person files a complaint with the Department of Labor and Industry as described above, the person must have exhausted the administrative remedies available under the law before having standing to initiate an independent lawsuit (Sec. 14, S. 118, L. 2005, effective April 25, 2005).
Court remedies.- In a lawsuit initiated pursuant to the Montana Military Service Employment Rights Act, the court may provide one or more of the following remedies (Sec. 16, S. 118, L. 2005, effective April 25, 2005):
require the employer to comply with the law;
require the employer to compensate the complainant for losses suffered by the complainant because of the employer's violation; or
if the court finds that the employer's violation was done willfully, require the employer to pay compensation as liquidated damages.
Public employers.- Effective until July 1, 2009, a state, city, town, or county employee who is a member of the organized militia of Montana or who is a member of the organized or unorganized reserve corps or military forces of the United States and who has been an employee for a period of at least six months must be given leave of absence with pay accruing at a rate of 15 working days in a calendar year for performing military service. Military leave may not be charged against the employee's annual vacation time. Unused military leave must be carried over to the next calendar year, but may not exceed a total of 30 days in any calendar year (Sec. 10-1-1009, as amended by H. 466, L. 2009).
Effective July 1, 2009, an employee of the state or of any political subdivision who is a member of the organized militia of Montana or who is a member of the organized or unorganized reserve corps or military forces of the United States and who has been an employee for a period of at least six months must be given leave of absence with pay accruing at a rate of 120 hours in a calendar year, or academic year if applicable, for performing military service. Military leave may not be charged against the employee's annual vacation time. Unused military leave must be carried over to the next calendar year, or academic year if applicable, but may not exceed a total of 240 hours in any calendar year or academic year (Sec. 10-1-1009, as amended by H. 466, L. 2009).
Civil office.- A person may be an officer in the militia or in a reserve component of the armed forces of the United States without vacating a civil office or position in Montana (Sec. 10-1-208).
Emergency services leave
Disaster services leave.- An agency may grant to a state employee up to 15 days in a calendar year of a paid leave of absence for the employee to participate in specialized disaster relief services for the American Red Cross if the employee is a certified American Red Cross disaster relief volunteer and the American Red Cross has requested the employee's services.
Leave time granted must be paid at the regular rate of compensation, including regular group, retirement or leave accrual benefits, for the regular work hours during which the employee is absent from the employee's regular duties and must commence upon approval of the employee's employing agency. It may not be charged against any other leave to which the employee is entitled. “Employee” means any person employed by an agency, except an elected official (Sec. 2-18-627).
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