NY Mil L § 242 (2021)
2021 New York Laws MIL - Military Article 11 - Privileges, Prohibitions and Penalties 242 - Rights of Public Officers and Employees Absent on Military Duty as Members of the Organized Militia or of Reserve Forces or Reserve Components of The

§ 242. Rights of public officers and employees absent on military duty as  members  of  the  organized  militia or of reserve forces or reserve components of the armed forces of the United States. 1. Definitions. (a) Public officer or employee. The term "public officer  or  employee",  as used  in  this section, shall include every person, by whatsoever title, description or designation  known,  who  receives  any  pay,  salary  or compensation  of  any  kind from the state or a municipal corporation or any other political subdivision thereof, or who is in any department  of the  state  or  in  the  service  of any public authority, but shall not include a person holding a position in the exempt  class  of  the  civil service  whose  appointment is terminated or whose position is filled by other than a substitute appointee.  (b) Ordered military duty. The term "ordered military duty",  as  used in this section, shall mean:   Any  military  duty  performed  in  the service of the state or of the United States, including but not limited to attendance  at  any  service school or schools conducted by the armed forces of the United States, by a  public  officer or employee as a member of any force of the organized militia or of any reserve force or reserve component of the armed forces of the United States, pursuant to orders issued by  competent  state  or federal authority, with or without the consent of such public officer or employee.  Participation  in  routine  reserve  officer  training  corps training is not considered to be military duty  except  when  performing advanced  training  duty as a member of a reserve component of the armed forces.   2. Leave of absence while engaged in performance of  ordered  military duty.  Every  public  officer  or  employee  shall be entitled to absent himself and shall be deemed to have a leave of absence from  his  duties or  service  as  such  public  officer  or employee while engaged in the performance of ordered military duty and while going  to  and  returning from such duty.   3.  Leave  of  absence  while  attending service schools. Every public officer or employee who is or becomes a voluntary member of any force of the organized militia or of any reserve force or  reserve  component  of the  armed  forces  of  the  United  States  shall be entitled to absent himself and shall be deemed to have a leave of absence from  his  duties or  service as such public officer or employee while in attendance, as a member of such force or reserve components, at  any  service  school  or schools  conducted  by  the armed forces of the United States, and while going to and returning from such school or schools, notwithstanding that orders for such attendance are or may be issued with the consent of such public officer or employee.   3-a. Leave of absence while  performing  full-time  training  duty  or active duty for training with or in an armed force of the United States. Every public officer or employee who is or becomes a member of any force of the organized militia or of any reserve force or reserve component of the  armed  forces  of  the  United  States  shall be entitled to absent himself and shall be deemed to have a leave of absence from  his  duties or  service  as  such  public officer or employee while performing, as a member of such force or reserve component,  initial  full-time  training duty  or  initial  active duty for training with or in an armed force of the United States under the provisions of this chapter or  the  laws  of the  United  States  or both, and while going to and returning from such full-time training duty or active  duty  for  training,  notwithstanding that  orders for such duty are or may be issued with the consent of such public officer or employee.   4. Employment rights. Time during which a public officer  or  employee is  absent  pursuant  to  the  provisions of subdivisions two, three and  three-a  of  this  section  shall  not  constitute  an  interruption  of continuous   employment  and,  notwithstanding  the  provisions  of  any general, special or local law or the provisions of any city charter,  no such  officer or employee shall be subjected, directly or indirectly, to any loss or diminution of time service, increment, vacation  or  holiday privileges,  or any other right or privilege, by reason of such absence, or  be  prejudiced,  by  reason  of  such  absence,  with  reference  to continuance   in   office   or   employment,  reappointment  to  office, re-employment, reinstatement, transfer or promotion.   5. Pay for military duty. (a) Every public officer or  employee  shall be  paid  his or her salary or other compensation as such public officer or employee for any and all periods of  absence  while  engaged  in  the performance  of  ordered military duty, and while going to and returning from such duty, not exceeding a  total  of  thirty  days  or  twenty-two working  days,  whichever  is  greater, in any one calendar year and not exceeding thirty days or twenty-two working days, whichever is  greater, in any one continuous period of such absence.  (b) Every public officer or employee employed by the state of New York who  served  in  a  combat  theater  or  combat  zone  of  operations as documented by a copy of his or her  DD214,  certificate  of  release  or discharge  from  active  duty, or other applicable department of defense documentation, shall be paid his or her salary or other compensation  as such public officer or employee for any and all periods of absence while utilizing  any  healthcare  related  services  related to such duty, not exceeding five working days, in any one calendar year.  (c) Public officers or employees,  as  defined  by  paragraph  (a)  of subdivision  one  of this section, who are not employees of the state of New York and  therefore  not  entitled  to  the  benefits  contained  in paragraph  (b)  of this subdivision, who have served in a combat theater or combat zone of operations as documented by  a  copy  of  his  or  her DD214,  certificate  of  release or discharge from active duty, or other applicable department of  defense  documentation,  may  be  entitled  to additional  paid  leave for health related services related to duty in a combat theater or combat zone of operations. The  governing  body  of  a municipal corporation may, in its sole discretion, adopt a resolution or local  law providing for the payment of the salary or other compensation of such public officers or employees for any and all periods of  absence while  utilizing healthcare related services related to duty in a combat theater or combat zone of operations, not exceeding five  working  days, in  any one calendar year. Any such local law or resolution adopted must apply to both combat theater veterans  and  combat  zone  of  operations veterans  employed  by  such  public employer. Nothing in this paragraph shall be construed to diminish the rights, privileges,  or  remedies  of any employee under any collective bargaining agreement.   5-a.  Pay  for employees of a city with a population of one million or more. This subdivision shall govern the calculation of compensation and, where applicable, repayment of same by public officers or employees of a city with a population of one million or more who  are  engaged  in  the performance  of ordered military duty, including time spent traveling to and returning from such duty. In any conflict between  this  subdivision and  any  other  provision  of  law  with respect to such public servant soldiers, this subdivision shall be controlling.  (a) Definitions. As used in this subdivision:  (i) "Base pay of city salary" means the base pay received by a  public officer  or  employee from employment by a city. For public officers and employees who, prior to the effective date of this subdivision,  elected to  participate  in  a  "full pay/repayment plan", have returned to city employment from ordered military duty as of the effective date  of  this  subdivision  and  are, on the effective date of this subdivision, public officers or employees, the base pay of city salary shall  be  calculated by  the implementing agency as the salary received by the public servant soldier  as  of  the  effective  date of this subdivision or the date of return to city service, whichever is later.   For public officers and employees who, prior to the effective date  of this  subdivision, elected to participate in a "full pay/repayment plan" and who return to city employment from ordered military duty  after  the effective date of this subdivision, the base pay of city salary shall be calculated on the date of return to city employment.   For  public officers and employees who, prior to the effective date of this subdivision, elected to participate in a "full pay/repayment  plan" and  who  have,  by  the  effective  date  of  this subdivision, already separated from city employment in a manner other than by retirement, and except where the implementing agency shall determine  the  existence  of hardship,  the base pay of city salary shall be calculated as the salary received by the public servant soldier as of the date of separation from city service.   For public officers and employees who, prior to the effective date  of this  subdivision, elected to participate in a "full pay/repayment plan" and who separate from city employment in a manner other than  retirement after  the  effective  date  of  this  subdivision, and except where the implementing agency shall determine the existence of hardship, the  base pay  of  city  salary  shall be calculated as the salary received by the public servant soldier as of the date of return to city service.  (ii)  "Balloon  payment"  means  the   payment   required   for   full satisfaction of any remaining outstanding repayment obligation after ten years  from  the  date  of return from ordered military duty pursuant to paragraph (e) of this subdivision.  (iii) "City" means a city with a population of one million or more.  (iv) "City salary" means the gross salary received by a public officer or employee from employment by a  city,  before  taxes,  deductions,  or court-ordered payments, required or voluntary; but excluding payments by a city as employer for health, pension, and other benefits.  (v)  "Covered operation" means those military operations designated by the federal government of the United States, in  support  of  "Operation Enduring  Freedom",  "Operation Iraqi Freedom", "Operation Noble Eagle", or successors thereto, or operations specifically connected  by  federal designation,   action   or   implication  with  homeland  security.  The implementing  agency  may  make  such  additional  designations   on   a case-by-case basis as it shall deem, in its discretion, to be in keeping with the spirit and intent of this subdivision.  (vi)  "Differential  pay"  means  the pay calculated as the difference between a public servant soldier's  military  salary  and  city  salary, where the military salary is less than the city salary.  (vii)  "Full  pay/repayment  plan" means a salary and benefits plan in effect in a city prior to the effective date of this subdivision whereby a public servant  soldier  elected  to  receive  city  salary  while  on military  duty,  but is required to repay the lesser of such city salary or military salary to a city upon return from military duty.  (viii) "Implementing agency" means an agency of a city, as  designated by  the  mayor  of such city in writing, that is authorized to implement the provisions of this subdivision.  (ix) "Military salary" means the gross salary paid by  the  government of  the  United  States to a public servant soldier for ordered military duty in the armed forces of the United States in a covered operation, as further defined by the implementing agency, provided that such  military pay  shall  be  calculated  without  regard  to such extra or additional  stipends as hazard pay, housing or food  allowances,  or  other  similar additions.  (x)  "Public  officer"  or  "employee"  means  a  public officer or an employee of a city.  (xi) "Public servant soldier" means a public officer or employee of  a city  performing  ordered  military  duty  in  connection with a covered operation.  (b) The mayor of a city shall designate an agency of such city  to  be the   implementing  agency  that  will  administer  and  implement  this subdivision.  The implementing agency is hereby authorized to and shall:  (i) provide for the continuation of health insurance benefits, to  the public  servant  soldier and to such public servant soldier's family, if the family had been included  in  such  coverage  prior  to  the  public servant  soldier  beginning  ordered military duty, under the same terms and conditions as applied  to  such  public  servant  soldier  prior  to leaving city employment for ordered military duty; and  (ii)  provide  for hardship under certain conditions determined by the implementing  agency  for  public  servant  soldiers  who   elected   to participate  in  a  "full  pay/repayment  plan".  Such  conditions shall include, but shall  not  be  limited  to,  any  material  unforeseen  or compelling changes in circumstances affecting a public servant soldier's ability to repay that occurred since such public servant soldier elected to  participate  in  the  "full  pay/repayment  plan," including but not limited to injuries sustained while  on  ordered  military  duty,  or  a determination by the implementing agency that the public servant soldier is  or  will be experiencing severe economic hardship due to a change in circumstances. Relief may include an extension of the repayment term  or a  reduction  in  the  percentage of salary dedicated to repayment, or a modification  to  the  requirement   for   a   balloon   payment.   Such determinations of economic hardship may be made on a case-by-case basis, and   the   implementing  agency  may  require  the  provision  of  such information by the public servant soldier as it deems necessary to  make such determination.  (c)  Subdivision five of this section or any other law to the contrary notwithstanding, until August first, two thousand ten, unless the  mayor of a city, in his or her discretion, extends such date, a public officer or employee shall be paid city salary as such public officer or employee for  any  and all periods of absence while engaged in the performance of ordered military duty, and while going to and returning from such  duty, not  exceeding  thirty  working  days  in  any one calendar year and not exceeding thirty working days in  any  one  continuous  period  of  such absence.  (d)  Subdivision five of this section or any other law to the contrary notwithstanding, until August first, two thousand ten, unless the  mayor of a city, in his or her discretion, extends such date, a public servant soldier  shall, after having received the city salary to which he or she is entitled pursuant to paragraph  (c)  of  this  subdivision,  be  paid differential pay thereafter on his or her regularly scheduled pay period for the duration of such ordered military duty, if such ordered military duty  is  in  connection with a covered operation. No repayment shall be required to the city for such differential  pay  received  by  a  public servant  soldier,  provided that this prohibition on repayment shall not apply in the case of a material error in calculation that results in  an unwarranted  increase  to  the  public servant soldier. Repayment of any such overage shall be governed by the terms of  paragraph  (e)  of  this subdivision.  (e)  A  public officer or employee who, prior to the effective date of this subdivision, elected to participate in a "full pay/repayment  plan"  and,  in  having  done  so,  incurred a repayment obligation, shall make repayments in accordance with terms adopted by the implementing  agency, except that, with respect to such repayment obligations, such officer or employee shall have satisfied the obligation to repay when he or she has repaid  eighty-five  percent  of  the  amount of city salary or military salary, whichever is less, less other such discounts implemented by  the implementing  agency  as  of  the effective date of this subdivision and such incentives as may be implemented  by  the  implementing  agency  to encourage payment, and no such term shall:  (i) require a public officer or employee, while employed by such city, to  pay in any pay period more than seven and one-half percent of his or her base pay of city salary  toward  satisfying  his  or  her  repayment obligation,  except that a term may provide for full satisfaction of any remaining outstanding repayment obligation after ten years from the date of return from ordered military duty; or  (ii) require a retired public officer  or  employee  to  pay,  in  any month,  an  amount  more  than  seven and one-half percent of his or her monthly pension payment,  except  that  a  term  may  provide  for  full satisfaction of any remaining outstanding repayment obligation after ten years from the date of return from ordered military duty; or  (iii)  require  a public officer or employee separated from employment by such city in a manner other than by retirement, to pay, in any  year, an  amount  more than seven and one-half percent of the base pay of city salary, except that a term may provide  for  full  satisfaction  of  any remaining outstanding repayment obligation after ten years from the date of return from ordered military duty.  (f)  Notwithstanding  paragraph  (e) of this subdivision, a city shall not require the satisfaction of any repayment obligation  in  the  event that  a  public  servant soldier is killed in the performance of ordered military duty.   6. Rights and contributions under retirement systems. (a)  The  amount of required contributions to any pension or retirement system of which a public  officer  or  employee absent while engaged in the performance of ordered military duty is a member shall be deducted from the  salary  or other  compensation  paid  to  him as such public officer or employee as provided in this section. If  such  required  contributions  exceed  the amount of such salary or other compensation to which a public officer or employee  is entitled while engaged in the performance of military duty, the amount of such salary or other compensation shall  be  applied  upon such  required  contributions  and such public officer or employee shall have the right to pay to such pension or retirement system the amount by which such contributions exceed such salary or other compensation.  Such public  officer  or  employee  shall  also have the right to pay to such system, for any period of such absence during which he shall receive  no salary  or  other  compensation  as such public officer or employee, the amount that he would have contributed to such  system  if  he  had  been present and continuously engaged in the performance of the duties of his position during such period.  (b)  Such payments, other than those deducted from his salary or other compensation as such officer or employee, may be paid from time to  time at  any  time while engaged in such ordered military duty or within five years after the date of termination of such ordered military  duty,  or, in  the  event  of  the  death  of such public officer or employee while engaged in ordered military duty, such payments, or  any  part  thereof, may be made by the named beneficiary or the legal representative of such public officer's or employee's estate within one year following proof of such death.  (c)  To  the  extent  that  such contributions are paid, absence while engaged in  the  performance  of  military  duty  shall  be  counted  in determining the length of total service under such pension or retirement system.  (d)  Any  such  public  officer  or  employee,  while  engaged  in the performance of ordered military duty, or his beneficiary,  as  the  case may  be,  shall  be  entitled  to  all  the  benefits  of the pension or retirement system of which he is a member except  accidental  disability retirement and accidental death benefit.