2023 New York Laws › MIL - Military › Article 11 - Privileges, Prohibitions and Penalties › 243 - Provisions Applicable to Public Employees Who Are Absent on Military Duty.

§ 243. Provisions  applicable  to  public  employees who are absent on
military duty. 1. Definitions. As used in this section:
(a) The term "public employee"  shall  mean  an  officer  or  employee
holding a position by appointment or employment in the state of New York
or in the cities, counties, towns, villages or school districts thereof,
or  in  any  other  political  or  civil  division  of the state or of a
municipality, or in any public or special district, or in the service of
any public authority, public benefit corporation, commission  or  board,
or in any other branch of the public service.
(b)  The  term  "military  duty"  shall  mean  military service in the
military, naval,  aviation  or  marine  service  of  the  United  States
subsequent  to  July first, nineteen hundred forty, or service under the
selective training and service act of nineteen  hundred  forty,  or  the
national guard and reserve officers mobilization act of nineteen hundred
forty, or any other act of congress supplementary or amendatory thereto,
or any similar act of congress hereafter enacted and irrespective of the
fact that such service was entered upon following a voluntary enlistment
therefor or was required under one of the foregoing acts of congress, or
service  with  the United States public health service as a commissioned
officer, or service with the American Red Cross  while  with  the  armed
forces  of  the  United  States  on foreign service, or service with the
special services section of the armed forces of  the  United  States  on
foreign  service,  or service in the merchant marine which shall consist
of service as an officer or member of the crew on or in connection  with
a  vessel  documented  under  the  laws of the United States or a vessel
owned by, chartered to, or operated by or for the account or use of  the
government  of  the United States, or service by one who was employed by
the War Shipping Administration or Office of Defense  Transportation  or
their  agents as a merchant seaman documented by the United States Coast
Guard or Department of Commerce, or as a civil servant employed  by  the
United  States  Army Transport Service (later redesignated as the United
States  Army  Transportation  Corps,  Water  Division)  or   the   Naval
Transportation  Service;  and who served satisfactorily as a crew member
during the period of armed conflict, December seventh, nineteen  hundred
forty-one,  to  August  fifteenth,  nineteen  hundred forty-five, aboard
merchant  vessels  in  oceangoing,  i.e.,  foreign,   intercoastal,   or
coastwise  service  as such terms are defined under federal law (46 USCA
10301 & 10501) and further to include "near foreign" voyages between the
United States and Canada, Mexico, or the West Indies via  ocean  routes,
or  public  vessels  in oceangoing service or foreign waters and who has
received a Certificate of Release or Discharge from Active  Duty  and  a
discharge  certificate,  or  an  Honorable Service Certificate/Report of
Casualty, from the Department of Defense, or  who  served  as  a  United
States  civilian  employed  by  the  American  Field  Service and served
overseas under United States Armies and United  States  Army  Groups  in
world  war  II  during  the  period of armed conflict, December seventh,
nineteen  hundred  forty-one  through  May  eighth,   nineteen   hundred
forty-five,  and  who  (i)  was  discharged  or released therefrom under
honorable conditions, or (ii) has a qualifying condition, as defined  in
section  one of the veterans' services law, and has received a discharge
other than bad conduct or dishonorable from such service, or (iii) is  a
discharged  LGBT  veteran,  as  defined  in section one of the veterans'
services law, and has received a discharge other  than  bad  conduct  or
dishonorable  from  such  service,  or  who  served  as  a United States
civilian Flight  Crew  and  Aviation  Ground  Support  Employee  of  Pan
American  World Airways or one of its subsidiaries or its affiliates and
served overseas  as  a  result  of  Pan  American's  contract  with  Air
Transport  Command  or  Naval Air Transport Service during the period of

armed conflict, December fourteenth, nineteen hundred forty-one  through
August  fourteenth,  nineteen  hundred  forty-five,  and  who  (iv)  was
discharged or released therefrom under honorable conditions, or (v)  has
a  qualifying  condition,  as  defined  in  section one of the veterans'
services law, and has received a discharge other  than  bad  conduct  or
dishonorable from such service, or (vi) is a discharged LGBT veteran, as
defined in section one of the veterans' services law, and has received a
discharge  other  than bad conduct or dishonorable from such service; or
service in police duty on behalf of the United States  government  in  a
foreign  country,  if  such  person  is  a police officer, as defined by
section 1.20 of the criminal procedure law, and if such  police  officer
obtained  the  prior  consent  of  his  or her public employer to absent
himself or herself from his or her position to engage in the performance
of such service; or as an enrollee in the United States maritime service
on active duty and, to such extent as may be prescribed by or under  the
laws  of  the  United  States,  any  period  awaiting assignment to such
service and any period of education or training for such service in  any
school  or  institution  under  the  jurisdiction  of  the United States
government, but shall not include temporary and intermittent  gratuitous
service  in  any reserve or auxiliary force. It shall include time spent
in reporting for and returning from military duty and shall be deemed to
commence when the public employee leaves his or her position and to  end
when  he  or  she  is  reinstated  to his or her position, provided such
reinstatement is within ninety days after the  termination  of  military
duty,  as  hereinafter defined. Notwithstanding the foregoing provisions
of this paragraph, the term "military duty" shall not include any of the
foregoing services entered upon voluntarily on or after  January  first,
nineteen  hundred  forty-seven  and  before  June twenty-fifth, nineteen
hundred fifty; and, on or after July first,  nineteen  hundred  seventy,
the  term  "military  duty"  shall  not include any voluntary service in
excess of four years performed after that date,  or  the  total  of  any
voluntary  services,  additional  or  otherwise, in excess of four years
performed after that date, shall not exceed five years, if  the  service
in excess of four years is at the request and for the convenience of the
federal government, except if such voluntary service is performed during
a period of war, or national emergency declared by the president.
(c)  The  term "termination of military duty" shall mean the date of a
certificate of honorable discharge or a  certificate  of  completion  of
training  and service as set forth in the selective training and service
act of nineteen hundred  forty,  and  the  national  guard  and  reserve
officers mobilization act of nineteen hundred forty or, or a certificate
of  release  or  discharge  from active duty where an employee (i) has a
qualifying condition,  as  defined  in  section  one  of  the  veterans'
services  law,  and  has  received a discharge other than bad conduct or
dishonorable from such service, or (ii) is a discharged LGBT veteran, as
defined in section one of the veterans' services law, and has received a
discharge other than bad conduct or dishonorable from such  service,  or
in  the event of the incurrence of a temporary disability arising out of
and in the course of such military duty, the date of termination of such
disability. The existence and termination of such temporary  disability,
in  the case of a public employee occupying a position in the classified
civil service or of a person on an eligible list for a position in  such
service,  shall  be  determined  by  the civil service commission having
jurisdiction over such position and, in the case of  a  public  employee
occupying  a  position  not  in  the  classified civil service, shall be
determined by the officer or body having the power of appointment.
(d) The term "position" shall mean the office or position  held  by  a
public employee at the time of his entrance upon military duty.
2. Leave of absence and re-employment. (a) Every public employee shall
be  entitled to absent himself or herself from his or her position while
engaged in the performance of military duty,  except  for  those  police
officers  who  are  required by paragraph (b) of subdivision one of this
section  to  obtain  the  prior consent of their public employers before
absenting themselves from their  positions  for  military  service,  who
accordingly  shall be entitled to absent themselves from their positions
only after obtaining such prior consent, and shall be deemed to  have  a
leave  of  absence  for  the duration of such military duty. Such public
employee shall be  reinstated  to  his  position  as  soon  as  possible
provided  he makes application for such reinstatement within ninety days
after the termination of his military duty, or at any  time  during  his
terminal  leave.  Thereafter, he may be so reinstated, at any time after
such ninety-day period and within one year after the termination of  his
military duty, in the discretion of the appointing officer or body.
(b)  A  public  employee  who  resigned  from  his position during his
military duty, or within six months prior to the  commencement  of  such
military duty, may, in the discretion of the appointing officer or body,
be  reinstated  to  his  position  within one year after the date of his
resignation, excluding from said period the  time  he  was  on  military
duty.  Every  public  employee  reinstated  under the provisions of this
subdivision or pursuant to subdivision one-a  of  rule  sixteen  of  the
rules  for the classified civil service for the state or pursuant to any
comparable rule of a municipal civil service commission, shall be deemed
to have been on a leave of absence for  the  duration  of  his  military
duty.
3.  Substitutes. A position held by a public employee who is absent on
military duty shall, so far as practicable, be  continued  in  existence
but shall be deemed temporarily vacant and shall be filled only when the
public  interest so requires. Any appointment to fill such vacancy shall
be  designated  as  a  substitute  appointment  and  the   request   for
certification,  the  certification  and the indicia of appointment shall
show that the person is being appointed  as  a  substitute.  Any  public
employee,  who  accepts  appointment  as a substitute shall be granted a
leave of absence from his former position until the termination of  such
appointment  and  the  temporary  vacancy  resulting  from such leave of
absence shall be filled in like manner only when the public interest  so
requires  and  any appointment to such position shall also be designated
as a substitute appointment  and  the  request  for  certification,  the
certification  and the indicia of appointment shall show that the person
is being  appointed  to  such  position  as  a  substitute.  Every  such
substitute  appointment shall be for a period not exceeding the leave of
absence of the former incumbent and shall be made in accordance with the
provisions of law applicable to such position, provided,  however,  that
such  substitute  appointment may be continued for a period in excess of
one year, notwithstanding the provisions of section fifteen of the civil
service  law.  Such  substitute  employee  shall  acquire  no  right  to
permanent appointment or tenure by virtue of his service as a substitute
and  such service may be terminated at any time in the discretion of the
appointing officer  or  body.  His  rights,  if  any,  with  respect  to
appointment or tenure, shall not, however, be impaired in any way by his
acceptance  of  an appointment as a substitute and his name shall remain
on any eligible or other list and he shall be certified as eligible  for
any  other  appointment  authorized  by law during the existence of such
list.
The appointment of a substitute shall terminate (a) upon the return of
the former incumbent to his position or (b) upon the death or  permanent
total  disability  of  the  former  incumbent or (c) upon failure of the

former incumbent to return to said position within ninety days after the
termination of  his  military  duty  or  (d)  upon  the  appointment  or
promotion  of  the former incumbent to another position as authorized by
subdivision  six of this section, and, upon the happening of any of such
events, said position may then be filled in the manner provided by law.
4. Pensions. Any public employee who is a member  of  any  pension  or
retirement  system  may  elect, while on military duty, to contribute to
such pension or  retirement  system  the  amount  which  he  would  have
contributed  had  his  employment  been  continuous and upon making such
contribution he shall have the same rights in respect to  membership  in
the  retirement  system  as he would have had if he had been present and
continuously engaged in the performance of the duties of his position.
Time during which a member  is  absent  on  military  duty  shall  not
constitute an interruption of continuous employment, but such time shall
not  be  counted  or included in determining the length of total service
unless such member contributes to the retirement system the amount he or
she would have been required  to  contribute  if  he  or  she  had  been
continuously employed during such period. Such contribution, or any part
thereof,  may  be  paid  at  any  time  and  from time to time, while in
military duty, or within five  years  after  the  date  of  his  or  her
restoration  to  his  or  her  position or before December thirty-first,
nineteen hundred sixty-two, whichever date is later, or in the event  of
the death of the member while in military duty such contribution, or any
part  thereof,  may  be  paid  by  the  named  beneficiary  or the legal
representative of the member's estate within one year following proof of
such death. A member of the New York state employees' retirement  system
or  of  the  New York state and local police and fire retirement system,
other than a member of the state police in a collective negotiating unit
established pursuant to article fourteen of the civil service  law,  who
is  in  the  employ of the state on March thirty-first, nineteen hundred
seventy, who failed to make such  contributions  during  the  prescribed
period of time may nonetheless obtain credit for time during which he or
she  was  on  military duty by depositing with such retirement system an
amount equal to the contribution he or she would have made had he or she
made a timely election,  with  regular  interest,  on  or  before  March
thirty-first,  nineteen  hundred  seventy-two,  provided,  however, such
member may elect to deposit such amount over a period of time no greater
than the period for which credit is being claimed, in  which  case  such
payments  must  commence  no  later  than  March  thirty-first, nineteen
hundred seventy-two. If the full amount of such payments is not paid  to
the   retirement  system,  the  amount  of  service  credited  shall  be
proportional to the total amount of the payments made. A member  of  the
New  York  state  and  local  police and fire retirement system who is a
member of the state police in a collective negotiating unit  established
pursuant  to  article  fourteen  of the civil service law, who is in the
employ of the state on March thirty-first, nineteen hundred seventy-one,
who failed to make such contributions during the  prescribed  period  of
time  may  nonetheless obtain credit for time during which he or she was
on military duty by depositing with such  retirement  system  an  amount
equal to the contribution he or she would have made had he or she made a
timely election, with regular interest, on or before March thirty-first,
nineteen  hundred  seventy-two, provided, however, such member may elect
to deposit such amount over a period of time no greater than the  period
for  which  credit  is  being  claimed, in which case such payments must
commence no later than March thirty-first, nineteen hundred seventy-two.
If the full amount of such  payments  is  not  paid  to  the  retirement
system,  the  amount  of  service  credited shall be proportional to the
total amount of the payments made.
A member of the New York  state  teachers'  retirement  system,  whose
service terminates on the expiration of his contract, and for whom there
is no employer to cover the cost of his accruing pension rights while in
military  service  following  the  cessation of his contract, may pay in
addition  to his own contributions, an amount equal to the percentage of
his salary which his employer would have  paid  had  he  remained  under
contract,   which   contributions   shall   be  paid  into  the  pension
accumulation fund of the aforementioned retirement system and be treated
as if they had been continued by his employer except that in  the  event
of his death as a member prior to retirement or on his withdrawal of his
accumulated  contributions  from  the system, the amounts so paid by him
shall be returnable, with regular interest, as if they were  a  part  of
his  accumulated  contributions. Such contributions or any parts thereof
may be paid at any time and from time to time while in military duty  or
within  five  years  after  the  member  has  returned  to public school
teaching in New York state or  before  December  thirty-first,  nineteen
hundred sixty-two, whichever date is later.
Any  such  member,  while on military duty, or his beneficiary, as the
case may be, shall be entitled to all benefits of the retirement  system
of  which  he  is  a  member except accidental disability retirement and
accidental death benefit.
Any public employee holding a position by appointment who is or was  a
member  of  any  pension or retirement system and who, while such member
and while on military duty, applied for retirement as a member  of  such
system to take effect within thirty days prior to the date of expiration
of  his appointment and who shall accordingly have been retired pursuant
to such application but thereafter and  within  thirty  days  after  the
effective  date  of  such  retirement shall have been reappointed to his
said position and shall have applied  thereafter,  before  or  upon  his
release from military duty, for membership in such pension or retirement
system,  shall  be  deemed  to  have  had  continuous membership in such
pension or retirement system and shall be entitled to  all  the  rights,
benefits  and  privileges under his contract of membership as it existed
at the time of  such  retirement,  provided  he  shall  (1)  return  any
pension,  annuity  and  retirement  allowance  payments  received by him
during the period of such retirement, (2) consent to the termination  of
his  right  to receive pension, annuity or retirement allowance payments
on the basis of such retirement, (3) pay into the  appropriate  fund  of
such  pension  or retirement system the amount he would have contributed
thereto, if he had not so retired, on the basis of  the  salary  he  was
receiving  when  he so retired, and (4) pay into the appropriate fund of
such pension or retirement system the amount which  his  employer  would
have  paid thereto on his account if he had continued as a member during
such period of retirement.
4-a. Notwithstanding  the  provisions  of  subdivision  four  of  this
section,  in  any  case  where  any  member of any pension or retirement
system maintained under any provision of the administrative code of  the
city  of  New York, or under section twenty-five hundred seventy-five of
the education law, did not, within five years  after  the  date  of  the
restoration  of  such  member  to  his  position,  pay  the contribution
required by such subdivision four to be paid within such  period,  as  a
prerequisite  to  obtaining service credit in such system for the period
of his military duty, such contribution, or any part  thereof  remaining
due,  may  be  paid  on  or  before  June  thirtieth,  nineteen  hundred
fifty-seven, provided that any  such  member  who,  on  or  before  such
last-mentioned  date,  retires  or  is retired, without having paid such
contribution, shall not be entitled to make such payment.
4-b. (a) As used in this subdivision, the following terms  shall  mean
and include:
(1)  "New  York  city  veteran of world war II". Any member of the New
York city employees' retirement system in city-service who, after his or
her last membership in such system began, served  as  a  member  of  the
armed  forces  of  the  United  States  during  the  period beginning on
December seventh, nineteen hundred  forty-one  and  ending  on  December
thirty-first,   nineteen   hundred  forty-six,  and  (i)  was  honorably
discharged or released under honorable circumstances from such  service,
or  (ii)  has  a  qualifying condition, as defined in section one of the
veterans' services law, and has received  a  discharge  other  than  bad
conduct or dishonorable from such service, or (iii) is a discharged LGBT
veteran,  as  defined  in section one of the veterans' services law, and
has received a discharge other than bad  conduct  or  dishonorable  from
such service.
(2)  "New York city veteran of the Korean conflict." Any member of the
New York city employees' retirement system in  city-service  who,  after
his  or  her last membership in such system began, served as a member of
the armed forces of the United States during the period beginning on the
twenty-seventh of  June,  nineteen  hundred  fifty  and  ending  on  the
thirty-first  day  of  January, nineteen hundred fifty-five, and (i) was
honorably discharged or released under honorable circumstances from such
service, or (ii) has a qualifying condition, as defined in  section  one
of  the  veterans' services law, and has received a discharge other than
bad conduct or dishonorable from such service, or (iii) is a  discharged
LGBT  veteran,  as defined in section one of the veterans' services law,
and has received a discharge other than bad conduct or dishonorable from
such service.
(b) Notwithstanding any provision of subdivision four of this  section
to  the  contrary, any New York city veteran of World War II or New York
city veteran of the Korean conflict who did not, within  the  applicable
period  of  time  prescribed by subdivision four of this section, comply
with the requirements of such subdivision for obtaining  service  credit
in  the New York city employees' retirement system for the period of his
military duty, may, by a written application  duly  executed  and  filed
with the board of estimate of the city of New York, prior to July first,
nineteen  hundred  sixty-nine, elect to purchase such service credit. If
such veteran shall pay to such retirement system, prior to  July  first,
nineteen  hundred sixty-nine, the amount which he would have contributed
thereto if he had been  continuously  employed  during  such  period  of
military  duty,  he  shall  have  in  such retirement system the service
credit which he could have obtained for such period of military duty  if
he  had  complied  with the requirements of such subdivision four within
the period of time therein prescribed.
5. Rights upon restoration to position. A public employee restored  to
his  position  after  the  termination of his military duty or after the
termination of his substitute appointment shall thereafter  be  entitled
to  the  rate  of compensation he would have received had he remained in
his position continuously during such period of military duty or  during
such  period  of  service  as  a  substitute and shall be deemed to have
rendered satisfactory and efficient service in such position during  the
period  of  his  leave of absence and shall not be subjected directly or
indirectly to any loss of time service, increment, or any other right or
privilege, or be prejudiced in any  way  with  reference  to  promotion,
transfer,  reinstatement or continuance in office. If a public employee,
by reason of injuries sustained or disease contracted while on  military
duty,  as  hereinbefore  defined, is incapable of efficiently performing
the duties of his position after the termination of his  military  duty,

he  may,  with  the  approval  of  the  civil  service commission having
jurisdiction of such position, be transferred to any vacant position  in
the same jurisdictional classification and in the same governmental unit
for  which  he  has  applied  in writing and for which he has been found
qualified, after such tests as  the  commission  may  deem  appropriate,
provided  the rate of compensation for such position is not greater than
the rate of compensation for the position to which such public  employee
was restored. If a promotion examination is held while a public employee
entitled  to  participate  therein  is  on  military  duty,  such public
employee shall be given a  comparable  examination,  provided  he  makes
request therefor within sixty days after restoration to his position. If
he  passes  such  examination  his  name  shall be placed upon a special
eligible list provided  that  his  name  would  have  been  reached  for
certification  between  the date when he entered upon such military duty
and the date that he was officially notified that  he  had  passed  such
examination.  Such special eligible list shall remain in existence for a
period of two years from the date that the name of such person is placed
thereon and  such  special  eligible  list  shall  be  certified  before
certification  shall  be  made  from  any  subsequent  or eligible list,
whether  open  competitive,  promotion  or  preferred  which  has   been
established  for  the  same position, or from the original eligible list
for such position. A public employee  thus  appointed  after  passing  a
comparable  examination  as  herein  provided, shall, for the purpose of
computing seniority credit  and  training  and  experience  credit  upon
promotion  and  seniority  in  the  event  of suspension or demotion, be
deemed to have been appointed  on  the  earliest  date  upon  which  any
eligible,  who  was  lower  on  the regular promotion eligible list, was
appointed.
6. Appointment while on military duty. Any appointing officer or  body
may,  in  his  or  its  discretion, fill a vacancy by the appointment or
promotion of a public employee or any other person legally eligible  for
such  appointment  or  promotion,  notwithstanding  the  absence of such
person or employee in military duty but such  appointment  or  promotion
shall  not  serve to increase in any degree any civil compensation which
he may have been receiving  pursuant  to  section  six  of  chapter  six
hundred  eight of the laws of nineteen hundred fifty-two. Such employee,
upon the termination of his military duty shall have  the  same  rights,
privileges  and  obligations  as  if  he had served continuously in such
position from the date of his appointment thereto.
7. Status of existing lists. Any person whose name is on any  eligible
list shall, while in military duty, retain his rights and status on such
list. If the name of any such person is reached for certification during
his  military duty, it shall be placed on a special eligible list in the
order of his original  standing,  provided  he  makes  request  therefor
following  termination of his military duty and during the period of his
eligibility  on  such  list.  Such  list  shall  be   certified   before
certification  shall  be  made  from  a  subsequent  open competitive or
promotion eligible list for the  same  position  or  from  the  original
eligible list for such position. Such names shall remain on such special
eligible  list  for  a period of two years after the termination of such
military duty. Any such person thus appointed shall, for the purpose  of
computing  seniority  credit  and  training  and  experience  credit for
promotion and date of membership in the retirement system and  seniority
in the event of suspension or demotion, be deemed to have been appointed
on  the earliest date upon which any eligible, who was the lower on such
original eligible list, was appointed, provided,  however  that  service
credit  shall  be  computed  from  the  actual  date of appointment. The
retirement  system  contributions  of  any  such  person  who  made  any

contribution  to  the  retirement system pursuant to article fourteen or
fifteen of the retirement and social security law, and who was appointed
on or after July twenty-seventh, nineteen hundred seventy-six shall  not
be refunded.
7-b.  Status  of applicants called for military duty before taking all
parts of an examination. Any person  who  has  passed  one  or  more  of
several  parts  of  an  examination for a position for which competitive
examinations are required, and who has been  prevented  from  taking  or
completing  the  remaining  part  or  parts  of the examination for such
position by reason of his service in military duty shall be afforded  an
opportunity  to  take a comparable examination as to such remaining part
or parts, provided he makes request therefor during the period of ninety
days following termination of his  military  duty.  If  he  passes  such
examination  his  name  shall  be  placed  upon  a special eligible list
provided that his name would have been reached for certification between
the date when he entered upon such military duty and the  date  that  he
was  officially  notified  that  he  had  passed  such examination. Such
special eligible list shall remain in existence  for  a  period  of  two
years from the date that the name of such person is placed thereon. Such
special  eligible  list shall be certified before certification shall be
made from a subsequent eligible list whether open competitive, promotion
or preferred for the same position or from the  original  eligible  list
for such position. Any such person thus appointed shall, for the purpose
of  computing  seniority  credit  and training and experience credit for
promotion and seniority in the  event  of  suspension  or  demotion,  be
deemed  to  have  been  appointed  on  the  earliest date upon which any
eligible was appointed who was lower on such original eligible  list  or
lower  in  relative  order of rating thereon than such person would have
been had his name been entered thereon.
8. Service and efficiency ratings. A public employee who is absent  on
military  duty  shall  be  credited  with  the average of the efficiency
ratings which he received for the three periods immediately prior to his
absence on military duty but such  rating  shall  not  be  less  than  a
passing  grade for the period of such absence, nor shall it be less than
the rating which he received for the period  immediately  prior  to  his
absence   on   military   duty.   In  computing  seniority  and  service
requirements for promotion eligibility, such  period  of  military  duty
shall be counted as service in the position held by such employee.
9.  Probationary  service. If a public employee or other person enters
military duty before the expiration of the probationary  period  in  any
position to which he may have theretofore been appointed, or to which he
may  thereafter  be appointed or promoted pursuant to subdivision six of
this section, the time he is absent on military duty shall  be  credited
as satisfactory service during such probationary period.
9-a.  Probationary service of teachers. Notwithstanding the provisions
of subdivision five of this section and subdivision four of section  two
hundred  forty-two  of  this  chapter,  in  any case where a teacher, as
defined in section thirty-one hundred one of the education  law,  enters
military  duty before the expiration of the probationary period to which
he may have theretofore  been  appointed,  the  time  he  is  absent  on
military  duty  shall  be  credited  as satisfactory service during such
probationary period. If the end  of  such  probationary  service  occurs
while  the  teacher is on military duty or within one year following the
termination of such military  duty,  the  period  of  such  probationary
service  may be extended by the local board of education for a period of
not to exceed one year from the date of  termination  of  such  military
duty, but in no event for a period of probationary service in the actual
performance  of  teaching  services, exclusive of such military service,

beyond that required by the school district at the  time  of  his  entry
into military service.
10.  Physical  examination.  If a physical examination is required for
employment in or promotion to any position in the  public  service,  the
physical  disability  of  a  candidate  incurred  by  reason  of  injury
sustained or disease contracted while in military duty, as  hereinbefore
defined,  or  during the world war shall not be deemed to disqualify him
for such position unless the disability  is  of  such  a  nature  as  to
prevent him from efficiently performing the duties of such position.
10-a. Age requirements. If maximum age requirements are established by
law,  or rule or by action of a civil commission for examination for, or
for appointment or promotion to, any position in the public service, the
period of military duty as hereinbefore defined, the period  of  service
after  June  twenty-seventh, nineteen hundred fifty, voluntarily entered
upon between January  first,  nineteen  hundred  forty-seven,  and  June
twenty-seventh,  nineteen hundred fifty, if such service otherwise falls
within the definition of military duty, and the period of terminal leave
granted by the military authorities of a candidate or eligible shall not
be included in computing the age of such candidate or eligible  for  the
purposes  of  such  examination  or  appointment or promotion; provided,
however, that  neither  shall  the  total  time  deducted  hereunder  in
computing  the age of a candidate or eligible exceed seven years for any
position including, but not limited to, in cities with a  population  of
one million or more.
10-b.  If  a  public  employer  consolidates, abolishes, displaces, or
demotes a position, in accordance with section eighty or eighty-five  of
the  civil service law, which is occupied by a public employee currently
on active duty with the armed forces of the United States,  as  pursuant
to  title  ten,  fourteen  or thirty-two of the United States code, such
employer shall comply  with  subdivisions  eleven  and  twelve  of  this
section  and, upon the termination of the public employee's active duty,
as defined in title ten, fourteen or thirty-two  of  the  United  States
code,  such  public  employer  shall  provide  full re-employment rights
warranted  to  such  employee  under  the  Federal  Uniformed   Services
Employment  and  Reemployment Rights Act of 1994, provided, however, the
right of re-employment under this  subdivision  does  not  entitle  such
employee  to displacement rights over any person with greater seniority.
Such public employer shall not abolish any position or positions  solely
based  upon the fact that the position or positions are currently filled
by an individual or individuals engaged in military duty.
11. Preferred lists. If the position occupied by a public employee  is
abolished  prior  to the termination of his military duty his name shall
be placed forthwith upon a preferred list, as  herein  provided.  Public
employees in the competitive class of the civil service shall have their
names  placed upon a preferred eligible list, pursuant to the provisions
of section eighty-one of the civil  service  law  and  public  employees
subject   to  sections  twenty-five  hundred  ten,  twenty-five  hundred
eighty-five and twenty-five hundred eighty-eight of  the  education  law
shall  have their names placed upon a preferred list as provided in such
section.
12. Military re-employment lists. If the position occupied by a public
employee, who is not included in the provisions of subdivision eleven of
this section, has been abolished or is no longer in existence  upon  the
termination  of  his  military duty such employee, upon filing a written
request within ninety days after the termination of his  military  duty,
shall  have  his  name  placed  forthwith, upon a military re-employment
list, as herein provided, for the position  last  held  by  him  or  any
similar  position.  The military re-employment list for public employees

in the classified civil service, other than in  the  competitive  class,
shall be established by the civil service commission having jurisdiction
of  such  position and such list for public employees who are not in the
classified  civil  service shall be established by the officer who makes
payment of the wages or salary for such position. Separate  lists  shall
be  established for positions in the non-competitive and the labor class
of the classified civil service. After the establishment of  a  military
re-employment  list,  it  shall be made available to appointing officers
and bodies and no position shall be filled until the appointing  officer
or  body  certifies to the civil service commission or to the disbursing
officer,  as  the  case  may  be,  that  no  person  on  such   military
re-employment list, who formerly held the same or a similar position, is
qualified to fill and willing to accept appointment to such vacancy. The
civil  service commission or the disbursing officer, as the case may be,
shall refuse to  approve  the  payroll  for  such  position  until  such
certificate  is  filed.  Appointments from a military re-employment list
may be made without regard to  the  order  of  standing  on  said  list.
Eligibility  for appointment from such military re-employment list shall
not continue for a period longer  than  four  years  from  the  date  of
termination  of military duty. Refusal to accept an offer of appointment
to a position similar to the last held by  such  public  employee  shall
cause  the removal of his name from such list. Upon a failure or refusal
to comply with the provisions of subdivisions eleven and twelve of  this
section,  the  supreme court is empowered, upon the filing of a petition
or other appropriate pleading, by the public employee  entitled  to  the
benefits   of   such  provisions,  to  specifically  require  compliance
therewith, and may, as an incident thereto, compensate such employee for
any loss of wages suffered by reason of such unlawful action. The  court
shall  order  a  speedy hearing in any such case and shall advance it on
the calendar. Nothing in this subdivision shall be construed to apply to
positions in the exempt class of the classified civil service.
13. Temporary positions. The provisions of subdivisions three and five
of this section shall not be applicable to a public employee  holding  a
temporary  position,  but  such  employee shall, nevertheless, be placed
upon a military re-employment list, as provided in subdivision twelve of
this section and, so far as practicable, shall be restored to a position
similar to that held at the time such employee entered military duty.
14. Public employees appointed for a definite term. A public  employee
appointed for a definite term shall be deemed to have a leave of absence
until  the  end  of  his term of office and until his successor has been
appointed, but not thereafter, for the purpose of determining his rights
under this section.
15. Elective officers. The provisions  of  subdivision  four  of  this
section  shall  be  applicable  to  an  elective officer and he shall be
deemed to continue in his office until his successor has  been  elected,
but not thereafter, for the purpose of determining his rights under such
subdivision.  No other provisions of this section shall be applicable to
elective officers.
16. Salaries. Nothing in this section shall be construed to  give  any
public  employee any claim for salary or compensation during his absence
on military duty.
17. Certificates as to service. A certificate signed by the commander,
total army personnel center as to persons in the army or in  any  branch
of the United States service while serving pursuant to law with the army
of  the United States, signed by the commander, naval military personnel
as to persons in the United States service while serving pursuant to law
with the United States navy, and signed by the commandant, United States
marine corps, as to persons in the marine corps, or in any other  branch

of  the  United  States  service  while serving pursuant to law with the
marine corps, signed by the chief, air force military  personnel  center
as to persons in the United States service while serving pursuant to law
with  the  United States air force or signed by an officer designated by
any of them, respectively, for the purpose, shall when produced be prima
facie evidence  as  to  any  of  the  following  facts  stated  in  such
certificate:  That  a  person  named has not been, or is, or has been in
military service; the time when and the place where such person  entered
military  service, his residence at that time, and the rank, branch, and
unit of such service that he entered, the dates within which he  was  in
military service, the monthly pay received by such person at the date of
issuing  the  certificate, the time when and the place where such person
died in or was discharged from such service.  It  is  the  duty  of  the
foregoing  officers  to furnish such certificate on application, and any
such certificate when purporting  to  be  signed  by  any  one  of  such
officers,  or  by any person purporting upon the face of the certificate
to have been so  authorized,  shall  be  prima  facie  evidence  of  its
contents and of the authority of the signer to issue the same.
18.  Rights and privileges of public employees and other persons while
engaged in essential war work. Every public employee, or other person to
whom this section is applicable, who has been or may  be  discharged  or
relieved  from  military  duty  on  condition  that  he  engage  in work
essential to the prosecution  of  the  war,  shall  be  entitled,  while
engaged in such work, to all the rights and privileges to which he would
have  been  entitled,  under  the  provisions  of  this  section, had he
continued to perform military duty. A certificate of  the  war  manpower
commission, or of the United States employment service, or of the proper
authorities  in  the  armed forces of the United States, or of any other
authorized federal agency, that  any  such  public  employee,  or  other
person  to  whom  this  section  is  applicable, is or has been, for the
period stated in such  certificate,  engaged  in  such  work,  shall  be
required  in order to confer upon such employee or person the rights and
privileges accorded by this subdivision, and such certificate  shall  be
presumptive evidence of such facts.
19. Leaves of absence and re-employment of certain teachers and school
supervisors.  A  member of the teaching or supervising staff in a school
district other than a school  district  employing  a  superintendent  of
schools  shall  be  entitled  to  absent himself from his position while
engaged in the performance of military duty and shall be deemed to  have
a  leave  of absence for the duration of such military duty. Such person
shall be reinstated to his position provided he  makes  application  for
such  reinstatement  within  ninety  days  after  the termination of his
military  duty,  notwithstanding  that  his  contract  with  the  school
district shall have expired.
20.  Payment  of pension contributions by city of New York. A. As used
in this subdivision:
(1) the term "New York city member" shall mean any public employee (a)
who was granted a leave of absence for the period of his  military  duty
pursuant  to  the  provisions of subdivision two of this section and who
was on April eleventh, nineteen hundred  forty-seven,  or  shall  become
prior  to  January  first,  nineteen  hundred fifty-two, a member of any
pension or retirement  system  to  which  the  city  of  New  York,  the
Triborough  bridge  and  tunnel  authority, or the New York city housing
authority is required by law to make contributions on  account  of  such
employee,   or   (b)   who  was  on  April  eleventh,  nineteen  hundred
forty-seven, or shall thereafter become a member of any such system  and
who  is  or  shall  be  entitled  to  seniority  credit and training and
experience credit under the provisions of subdivision seven, seven-a  or

seven-b  of  this section by reason of appointment from an eligible list
or special eligible list, but such term shall  not  include  any  public
employee  whose  rights as to civil compensation are or were governed by
section six of chapter six hundred eight of the laws of nineteen hundred
fifty-two;
(2)  the  term  "system"  shall  mean any pension or retirement system
referred to in subsection (1) of paragraph A of this subdivision.
B. Except as otherwise provided in paragraphs  C,  D  and  E  of  this
subdivision,  any  New  York  city member shall have as to any period of
military duty performed by him the same rights and shall be entitled  to
the same benefits in respect to his membership in any system as he would
have  had  if  he  had  been  present  and  continuously  engaged in the
performance of the duties
(1) of the position from which he  was  granted  a  leave  of  absence
pursuant  to the provisions of subdivision two of this section, if he is
not entitled to seniority and training and experience credit as provided
by subdivision seven, seven-a or seven-b of this section,  and  was  not
appointed   to  a  position  while  on  military  duty  as  provided  by
subdivision six of this section, or
(2) if he was granted  such  leave  and  received  an  appointment  as
provided  by subdivision six of this section, of the position from which
he received such leave of absence, up to the date of  such  appointment,
and thereafter as if he had been present and continuously engaged in the
performance of the duties of such position to which he was appointed, or
(3)  if  granted  such  leave  of  absence  and  entitled to credit as
provided by subdivision seven, seven-a or seven-b of  this  section,  of
the  position from which he was granted such leave of absence, up to the
date upon which he is deemed to have been appointed as provided in  such
subdivision  seven,  seven-a or seven-b and thereafter as if he had been
present and continuously engaged in the performance of the duties of the
position with respect to which the date on which he is  deemed  to  have
been  appointed  is  specified  by  such  subdivision  seven, seven-a or
seven-b, or
(4) if he did not receive such leave, but is entitled to credit  under
such  subdivision seven, seven-a or seven-b, of the position to which he
is deemed to have been appointed on the date specified therein,  and  as
if  he  had actually been appointed and had entered upon the performance
of the duties of such position upon such date.
C. No New York city member shall be entitled to  any  of  the  rights,
benefits or credit conferred by this subdivision with respect to
(1)  any period of military duty, or portion thereof, during which the
military base pay of such member or his compensation for  military  duty
performed other than as a member of the armed forces, exceeded the civil
compensation  of  the  position  or  positions with respect to which his
rights and benefits for the corresponding period or portion thereof  are
determined by the provisions of paragraph B of this subdivision, or
(2)  any  period of military duty or portion thereof prior to the date
upon which any member, who was not granted a leave of  absence  pursuant
to  the provisions of subdivision two of this section, is deemed to have
been appointed by virtue of the provisions of subdivision seven, seven-a
or seven-b of this section.
As to any period of military duty or portion thereof  referred  to  in
subsection  (1)  of  this  paragraph, the rights of any such member with
respect to membership in any system shall be governed by the  provisions
of subdivision four of this section.
D.  Time  during which any New York city member was absent on military
duty shall not constitute an interruption of continuous employment  and,

except  as  provided in paragraph C of this subdivision, such time shall
be counted and included in determining the length of total service.
E.  Upon  the  death  or retirement of a New York city member, but not
otherwise, the city of  New  York,  the  Triborough  bridge  and  tunnel
authority,  or the New York city housing authority (whichever shall have
first employed such member after the termination of his  military  duty)
shall  pay  into the appropriate fund of the system in which such member
held membership at the time of his death or retirement,  the  amount  of
all contributions which such member would have been required to make if,
during  the  period  of  his  military duty, he had been present and had
continuously performed the duties of  the  position  or  positions  with
respect to which his rights and benefits during the corresponding period
or  portion  thereof  are determined by the provisions of paragraph B of
this subdivision; provided that such city or  authority  shall  not  pay
into  any such fund any contributions payable or accruing for any period
of military duty or portion thereof, referred to in paragraph C of  this
subdivision.  Each such member shall be credited with such contributions
paid in his behalf  by  such  city  or  authority  for  all  pension  or
retirement  purposes;  provided  that  (1) any portion of any retirement
allowance, pension, death benefit or other benefit or right derived from
such contributions paid in  behalf  of  such  member  by  such  city  or
authority,  shall  be  such  amount  as  the  payment  required  by this
paragraph, made at the time herein specified, shall  provide,  (2)  such
member  shall not under any circumstances have the right to withdraw the
amount of such contributions, or any interest thereon, as a part of  his
accumulated deductions or otherwise, and (3) such contributions shall be
excluded  in  determining  the  amount of any loan which any such member
shall be entitled to make.
F. In any case where any New York city member has heretofore  paid  or
shall  hereafter  pay  to any system any contributions which the city of
New York, the Triborough bridge and tunnel authority, or  the  New  York
city  housing  authority  is  required  to  pay  to  such  system by the
provisions of this subdivision, such contributions shall be regarded  as
excess  contributions  which  are  (1)  creditable  in  lieu  of regular
contributions (a) upon the return of such member to his  position  after
the  termination of his military duty, or (b) upon his becoming a member
of such system, if he did not become a member thereof  until  after  the
termination  of  such duty, or (2) payable in addition to other benefits
upon separation meanwhile with benefit.