2023 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.