Military and Emergency Services Leave Law Summaries
South Carolina, Military and Emergency Services Leave Law Summaries
South Carolina's military leave law is located in the Code of Laws of South Carolina 1976 Annotated at Title 8, Chapter 7; and at Title 25, Chapter 1, Articles 17 and 18. Disaster services leave is located at Title 8, Chapter 11.
DEFINITIONS
The following definitions refer to public employment:
“In any one year” means either a calendar year or, in the case of members required to perform active duty for training or other duties within or on a fiscal year basis, the fiscal year of the National Guard or reserve component issuing the orders (Sec. 8-7-90).
“Military service” means service in the Army, Navy or Marine Corps of the United States or any compulsory service in any capacity to the federal government for the purpose of national defense (Sec. 8-7-10(2)).
“Appointive authority” means (a) the person, board, commission or other authority originally electing or appointing the officer, (b) if the officer was elected to office in a general election or nominated in a primary, the Governor of the state, with the advice and consent of the Senate, if the officer is a state official or employee, (c) the Governor, upon the recommendation of the county legislative delegation, if the officer is an official or employee of a county or any of its political subdivisions, and (d) the Governor, upon the recommendation of the mayor and city council or other governing body of a city or town if the officer is an official or employee of a municipality (Sec. 8-7-10(3)).
“Officer” means any officer or employee of South Carolina or any political subdivision thereof who is elected or appointed for a definite term fixed by law (Sec. 8-7-10(1)).
COVERAGE
Both private and public employers are covered under South Carolina's military leave law.
WHAT THE EMPLOYER MUST DO
Military leave
South Carolina National Guard.- Any member of the South Carolina National Guard who, at the direction of the Governor, enters state duty is entitled, upon honorable release from such duty, to all the reemployment rights provided for by South Carolina's military leave law (Sec. 25-1-2310).
Upon release from state duty, employees are to make written application to their previous employer for reemployment within five days of release from duty or from hospitalization continuing after release. Provided the employee is still qualified, the employee is to be restored to the previous position or to a position of like seniority, status and salary, unless the employer's circumstances now make the restoration unreasonable. If no longer qualified for such former job, the employee is to be placed in another position, for which the employee is qualified, and that will give appropriate seniority, status and salary, unless the employer's circumstances now make the placement unreasonable (Sec. 25-1-2320).
State Guard.- Reemployment provisions applicable to members of the South Carolina National Guard must also apply to members of the South Carolina State Guard who, at the direction of the Governor or by the Governor's authority, enter state duty and are honorably released from that duty (Sec. 25-1-2340).
Public employers: Leave for armed forces.- Every employee of South Carolina or any political subdivision thereof who, on or after June 25, 1950, has been, or will be, commissioned, enlisted or selected for service in the armed forces of the United States, so long as the requirements and regulations of the armed forces prevent the employee's return to civil employment and for a period of 90 days thereafter, but in no event for a period longer than five years from the date of entry into the armed forces of the United States, is entitled to leave of absence as an employee of the state or any political subdivision thereof, without loss of seniority or efficiency or register rating.
The word “employee” as used here does not include an officer or official elected or appointed to a term pursuant to a statute or the Constitution of South Carolina (Sec. 8-7-20).
An officer absent from office or position in the military service is not entitled to any compensation as such officer during such absence. However, upon return from service, if return is before the expiration of the term for which the officer was elected or appointed, after 30 days' notice, and in writing, the officer will be entitled to possession of the office or position from which the officer was absent and, upon reassuming the duties of the office, is to receive the compensation for the remainder of the term (Sec. 8-7-80).
Leave for National Guard and reserves.- All officers and employees of South Carolina or its political subdivisions who are either enlisted or commissioned members of the South Carolina National Guard, the United States Army Reserve, the United States Air Force Reserve, the United States Naval Reserve, the United States Marine Corps Reserve, or the United States Coast Guard Reserve are entitled to leaves of absence from their respective duties without loss of pay, time, or efficiency rating for one or more periods not exceeding an aggregate of 15 regularly scheduled workdays in any one year during which they may engage in training or any other duties ordered by the Governor, the Department of Defense, the Department of the Army, the Department of the Air Force, the Department of the Navy, the Department of the Treasury, or any other department or agency of the government of the United States having authority to issue lawful orders requiring military service. Saturdays, Sundays, and state holidays may not be included in the 15-day aggregate unless the particular Saturday, Sunday, or holiday to be included is a regularly scheduled workday for the officer or employee involved. In the event any such person is called upon to serve during an emergency, the person is entitled to a leave of absence not to exceed 30 additional days (Sec. 8-7-90).
The provisions of this section must be construed liberally to encourage and allow full participation in all aspects of the National Guard and reserve programs of the armed forces of the United States and to allow state officers and employees who are enlisted or commissioned members of the National Guard or reserve components to excel in military and emergency preparedness and service by taking full advantage of all career-enhancing assignments and training opportunities (Sec. 8-7-90).
Training and encampments.- Officers and employees of South Carolina, and departments and subdivisions thereof, are entitled to military leave without loss of pay, seniority or efficiency rating, when attending National Guard encampments or schools for training, under proper authority, and on all other occasions when ordered to active duty, in the service of South Carolina (Sec. 25-1-2250).
Temporary vacancies.- The absence of any officer from his or her office or position because of military service does not create a forfeiture of or vacancy in the office or position to which such officer was elected or appointed, but is merely a temporary vacancy. Wherever the terms “forfeiture of office” or “vacancy in office” or other words of similar import are used in any law of South Carolina in relation to an officer, they are not to apply to any absence of such officer by reason of military service. Officers present at and able to perform the duties of their office cannot be considered as absent (Sec. 8-7-30).
If any office or position is vacant because of the absence of the officer in the military service, the appointive authority will appoint someone to fill the office or position temporarily. All such appointees hold the office or position temporarily during the absence of the officer in the military service or until the expiration of the term for which such officer in the military service was elected or appointed, whichever period of time is shorter (Sec. 8-7-40).
The person appointed to fill a temporary vacancy has and may exercise all the rights, powers, authority and jurisdiction and is to perform the duties vested in or required by law of the officer whose office or position such person is so appointed to and is to receive the same salary, fees, expenses or other compensation as such officer would be entitled to receive (Sec. 8-7-50).
Every person appointed to fill temporarily any office or position must possess the same qualifications prescribed by law, if any, for the regular holder of such office or position. If a bond is required by law of the regular holder of such office or position, then such person so appointed must also give bond in the manner and amount prescribed by law and is liable in the same manner as the regular holder of the office (Sec. 8-7-60).
Any officer temporarily in the military service cannot be required to be under bond during the period of such absence (Sec. 8-7-70).
Operation Enduring Freedom/Operation Noble Eagle.- Permanent full-time state employees described just below may use up to 45 days of accumulated annual leave in calendar year 2003 in connection with absences resulting from military service described just below. In addition, and without regard to the limit on annual leave that may be accrued or used in a calendar year as provided in Sec. 8-11-610, a permanent full-time state employee, for absences in connection with military service described just below in calendar year 2003, may use accumulated sick leave not to exceed 90 days as if it were annual leave (Sec. 1, H. 3829, L. 2003, effective April 21, 2003).
The leave provisions described just above apply to a permanent full-time state employee who (Sec. 1, H. 3829, L. 2003, effective April 21, 2003):
is a member of the National Guard serving in a unit federalized for duty in “Operation Enduring Freedom” or “Operation Noble Eagle,” or is a member in a unit federalized for duty in connection with potential or actual hostilities in Iraq, or any combination of these duties, and performs such duty; or
is a reservist called to active duty pursuant to “Operation Enduring Freedom” or “Operation Noble Eagle,” or serves in a unit called to active duty in connection with potential or actual hostilities in Iraq, or any combination of these duties, and performs such duty; or
is a member of the National Guard or a reservist and volunteers for duty in connection with the operations described in items (1) and (2) just above and performs such duty.
Emergency services leave
Disaster services leave.- A state employee entitled to annual leave who is a certified disaster service volunteer of the American Red Cross may be granted leave from work with pay for not more than 10 workdays in each calendar year to participate in specialized disaster relief services for the American Red Cross. Upon the approval of the employee's employer, the employee must be released from work for this function upon request of the American Red Cross for the services of that employee. This leave is in addition to other leave to which the employee is entitled (Sec. 8-11-180).
NOTICE
Reemployment: Public employers.- As a condition of reemployment, officers returning from military leaves of absence must give 30 days' notice and apply in writing (Sec. 8-7-80).
DEADLINES
Reemployment.- Employees seeking reemployment following military leaves of absence must send a written application to their previous employer within five days of release from duty or from hospitalization continuing after release (Sec. 25-1-2320).
Public employers.- As a condition of reemployment, officers returning from military leaves of absence must give 30 days' notice and apply in writing (Sec. 8-7-80).
ENFORCEMENT
Civil action.- Any employee may file a motion, petition, or other appropriate pleading in the circuit court of the county in which the employer's place of business is located requiring the employer to comply with the provisions relating to reemployment rights following military leave to compensate such employee for any loss of wages or benefits (Sec. 25-1-2330).
<p>Civil action.— Any employee may file a motion, petition, or other appropriate pleading in the circuit court of the county in which the employer's place of busin</p>
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