As most public employers know, the rules that apply to the rest of the private employment world are sometimes different for them, particularly when it comes to pay, leave, and similar items. Iowa Code 29A.28 provides that public employers, including the “state, a subdivision thereof, or a municipality” must ensure that employees who need to take a military leave of absence can do so and public employers must meet all requirements of the statute in regard to pay.
Employees taking military leave, both pursuant to 29A.28 and for employers in general under the Uniformed Services Employment and Reemployment Rights Act (USERRA) must be allowed to return to the same position and classification they held before military leave, with some limited exceptions. So paid leave is calculated based on the standard hours or schedule worked.
For public employers, the person on military leave is entitled to paid leave for the first 30 days of their leave. Note that the leave does not need to be continuous. While the Iowa law is somewhat gray, courts have indicated that an employee out on military leave is entitled to 30 full days of paid leave, based on their ordinary working days. This means that, if an employee ordinarily works five days per week, they are entitled to six weeks (30 working days) of paid leave under the statute.
The same goes for employees whose leave is not continuous. The employee would still be paid for the days they would have worked while they were out on military leave. For example, if an employee is on a week-long training duty but would normally have only worked two days within that time frame, the employee would only be entitled to two days of pay. Employers should track how many days each employee is out on paid military leave, as the employee’s right to leave is cumulative each year, up to 30 days. The clock resets at the beginning of each year. Additionally, employees who work long or extended shifts that span multiple days may be entitled to multiple days of military leave under the statute.
Also note that public employers cannot require employees to use vacation, sick leave, bonuses or other employment benefits while on military leave although they can have a permissive program if the employee requests additional paid leave.
The Big Picture
If you are a public employer, issues relating to military leave, reinstatement from such leave, and the veterans’ preference can all be very complicated. To complicate it more, state laws vary considerably, and different rules can apply to different employees. Federal law under USERRA is comprehensive and sets the baseline for returning to work and similar issues but state law varies. Before denying paid leave, disciplining, or even terminating an employee who may be on military leave, you should coordinate with your legal counsel to determine if you have met all the requirements of the state where the employee is employed.
