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HomeMy WebLinkAboutAgenda - 06-15-2010 - 4yORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 15, 2010 Agenda Item No. SUBJECT: Amendment to Orange County Personnel Ordinance Article IV, Section 15.0, Military Leave DEPARTMENT: Human Resources ATTACHMENT(S): 1. Current: Orange County Personnel Ordinance Article IV, Section 15.0 and Proposed: Amendment to Article IV, Section 15.0, Military Leave 2. Military Leave Administrative Rules and Regulations PUBLIC HEARING: (Y /N) No INFORMATION CONTACT: Michael McGinnis, Human Resources Director, 245 -2552 Diane Shepherd, Benefits Manager, 245 -2558 Annette Moore, Staff Attorney, 245 -2317 PURPOSE: To consider an amendment to Article IV, Section 15.0 of the Orange County Personnel Ordinance relating to Military Leave. BACKGROUND: The Orange County Personnel Ordinance was adopted in 1985. Since its adoption, laws affecting the rights and responsibilities of both employees and employers have changed significantly. In 1994, Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA).1 USERRA expanded the rights afforded under the Veterans Readjustment Assistance Act by protecting military servicemembers' and veterans' civilian employment rights when these individuals have been called up to serve or have served in the uniformed services. USERRA also protects servicemembers from discrimination because of their military service and has been expanded to include National Guard servicemembers who are called to active duty beyond the customary two week training period. In addition, the North Carolina General Statutes provide that the Governor make "policy and regulation relating to leave of absences for short period of military training and for State or federal military duty or special emergency management service" for both state and local government employees.2 Although the County has complied with has not been amended to reflect the employees, who are members of North ' 38 USC 4301 et seq. 2 N.C. Gen. Stat. §127 -116 USERRA and the state law, the Personnel Ordinance changes made in the legislation. Several County Carolina National Guard, have been called up to serve on active duty. Staff is recommending changes to the Personnel Ordinance that make it consistent with federal and state law and any implementing regulations. Highlights include: • Full civilian pay for 120 hours of military service; • After 120 hours of military service, provide a pay differential salary to activated service members for the length of their service; • Reemployment rights for qualified servicemembers; • Protection of benefits and seniority during military leave. Amendments to the Personnel Ordinance would change the current section of the Personnel Ordinance which allows employees military leave with pay, but does not define the length of time for which the County will pay an employee's full salary. In the past, the County has paid employees on long term military leave their full salary and benefits for the entire period they have been called to active duty which is not consistent with the law or best practices. Staff recommends that Article IV, Section 15.0 Orange County Personnel Ordinance be amended to add the provisions of USERRA as provided in Attachment 1 with the corresponding Rules and Regulations proffered by the County Manager. This amendment would make Orange County's Personnel Ordinance consistent with the USERRA and State law. FINANCIAL IMPACT: The County has had an average of one service member on active duty every five years. The proposed changes to the Personnel Ordinance would reduce the amount of salary paid to an employee during a period of active military duty consistent with federal and state law. RECOMMENDATION(S): The Manager recommends that the Board approve the proposed Personnel Ordinance amendment to Article IV, Section 15.0 Military Leave and authorize the County Manager to promulgate Administrative Rules and Regulations to implement the mandate of this Ordinance. The amendment to the Personnel Ordinance would be effective upon signature of the Administrative Rules and Regulations by the County Manager. Current Article IV, Section 15.0 Military Leave 15.0 Military Leave 15.1 Short Term - A Military Leave is granted upon request, and with essential documentation, to a full -time permanent or part-time permanent employee requiring time away from work because of a mandatory military obligation as a member of the armed forces reserve units. 15.1.1 Leave with pay, up to a maximum of 96 regularly scheduled working hours in a calendar year, (for part-time permanent employees hours will be prorated) is granted for a mandatory summer encampment. The first day of such leave is the first regularly scheduled workday the employee is absent. The employee retains military pay. However, the salary payment which the employee receives from the military shall be deducted from the sum paid by the County. 15.1.2 Leave with pay is granted to member of the Army or Air National Guard, and Naval Militia, Civil Air Patrol or other reserve components of the Armed Forces of the United States, ordered to active duty or emergency assignments. 15.1.3 The employee submits any request for Military leave, accompanied by a copy of the military orders to the supervisor for approval as soon as possible after the employee is notified. 15.2 Long Term - A Military Leave of Absence is granted upon request, and with essential documentation, to a full -time permanent or part-time permanent employee who enlists, is drafted or inducted into the Armed Forces for one voluntary enlistment in the active or reserve armed forces. 15.2.1 Military Leave without pay is granted for up to four years plus 90 days. However, extension is granted for the duration of such service in the event of a national emergency. 15.2.2 An employee who is honorably discharged and reports back to work in a timely way from Military leave is reinstated to his or her regular position and duties held at the time Military Leave commenced, as specified in the Veteran's Readjustment Assistance Act. 15.3 Reinstatement to the same or similar classification, seniority, and pay must be made upon the employee's return to work, unless such a position is no longer available due to budgetary reduction in staff. An employee is required to apply to Orange County for reinstatement within 90 days of honorable discharge. ORD-00(o -a51 4 Amended Article IV, Section 15.0 Military Leave 15.0 Military Leave 15 In accordance with the Uniformed Services Employment and Reemployment Rights Act of 1994, its amendments and any implementing regulations, (USERRA) 38 U.S.C. 4301 et. seq., N.C. Gen. Stat. 127A -116, military leave, employment, retention and reemployment rights and benefits are granted to qualified military servicemembers and veterans for certain periods of service in the uniformed services. 15.1 No agent or employee of the County shall deny an individual initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of their membership, application for membership, performance of services, application for service, or obligation for service in the uniformed services. 15.2 The County Manager will promulgate Administrative Rules and Regulations to carry out this section of the Personnel Ordinance. Orange County Personnel Rules and Regulations Manual Effective Date: 6/16/2010 5 15.0 Military Leave I. Ordinance I Article IV, Section 15.0 Military Leave 15.1 In accordance with the Uniformed Services Employment and Reemployment Rights Act of 1994, its amendments and any implementing regulations, (USERRA) 38 U.S.C. 4301 et. seq. and N.C. Gen. Stat. 127A -116, military leave, employment, retention and reemployment rights and benefits are granted to qualified military servicemembers and veterans for certain periods of service in the uniformed services. 15.2 No agent or employee of the County shall deny an individual initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of their membership, application for membership, performance of services, application for service, or obligation for service in the uniformed services. 15.3 The County Manager will promulgate Administrative Rules and Regulations to carry out this section of the Personnel Ordinance. II. Authority The purpose of this rule is to implement and give effect to Article IV, Section 15.0 of the Orange County Personnel Ordinance - Military leave. These Administrative Rules and Regulations provide for consistent application of the Personnel Ordinance to Orange County employees. III. Purpose These Administrative Rules and Regulations provide guidance for Article IV, Section 15.0 of the Orange County Personnel Ordinance - Military leave. The Military Leave section of the Ordinance provides qualified servicemembers and veterans civilian employment rights. Among other things, it protects a servicemembers' civilian job after they return from military service as well as protects servicemembers from discrimination in the workplace based on their military services or affiliation. IV. Administrative Rules and Regulations Employment, retention and reemployment rights and benefits are granted to qualified military servicemembers and veterans for certain periods of service in the uniformed services. An individual shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of their membership, application for membership, performance of services, application for service, or obligation for service in the uniformed services. A. Definitions. The following definitions apply to the Rules and Regulations for this Military Leave Section only. Issue Date: 6/16/ 2010 Page 1 Orange County Personnel Rules and Regulations Manual Effective Date: 6/16/2010 6 1. Service in the Uniformed Service. The performance of duty on a voluntary or involuntary basis in a uniformed service including: a. Active duty; b. Active duty for training; C. Initial active duty for training; d. Inactive duty training; e. Full -time National Guard; f. Absence from work for an examination to determine a person's fitness for any of the above types of duty; g. Funeral honors duty performed by national Guard or reserve members; h. Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Homeland Security — Emergency Preparedness and Response Directorate (FEMA), when activated for a public health emergency, and approved training to prepare for such services. 2. Uniformed Service. The Uniformed Services consist of the following: a. Army, Navy, Marine Corps, Air Force, or Coast Guard; b. Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve; C. Army National Guard or Air National Guard; d. Commissioned Corps of the Public Health Service; e. Any other category of persons designated by the President in time of war or emergency; f. Civil Air Patrol (as provided in these Rules and Regulations); g. State Militia (as provided in these Rules and Regulations); B. Covered Employees. 1. All permanent, permanent part-time and provisional employees are covered by these Rules and Regulations. 2. Temporary employees or those employees in pre - service positions that are for brief, non - recurrent periods where there is no reasonable expectation that employment will continue indefinitely or for a significant period of time are not covered by these rules and regulations. C. Leave Options. 1. Active and Inactive Duty Training. Leave with pay, shall be granted for active and inactive duty training up to a maximum of 120 hours each calendar year; pro -rated for part-time employees. Issue Date: 6/16/ 2010 Page 2 Orange County Personnel Rules and Regulations Manual Effective Date: 6/16/2010 a. If training is not scheduled on an employee's day off, the employee has the option of requesting that their work schedule be rearranged to provide them with the day off, or the employee may use any unused portion of the 120 hours of leave with pay, compensatory time, vacation or leave without pay. b. Any additional military leave for training shall be leave without pay or at the request of the employee they may use compensatory and vacation leave (compensatory leave must be used first). 2. Physical Examination. Leave with pay shall be granted for a required physical examination related to membership in the uniformed services. 3. Reserve Active Duty. When ordered to State or Federal active duty, or as an intermittent disaster - response appointee upon activation of the National Disaster Medical - System, the following shall apply for each period of involuntary service: a. Thirty days or less. Employees shall receive up to thirty (30) calendar days of pay based on their current annual County salary. b. Thirty -one days or more. After a thirty day period, employees shall receive differential pay for �jny period of involuntary service up to five years of cumulative services as provided in Section E. below This pay shall be the difference between military basic pay and the employee's annual County salary, if military pay is the less. 4. Extended Active Duty and Other Military Leave. Military leave without pay shall be granted for all extended active duty and other military leave in the uniformed service that is not covered by military leave with pay defined in Sections 1 -3 above. Extended active duty and other military leave are: a. Initial active duty for training (voluntary initial enlistment); b. Extended active duty (voluntary) for a period not to exceed five years plus any additional service imposed by law; c. Full time National Guard duty (usually a voluntary 3 year contract); Issue Date: 6/1612010 Page 3 Orange County Personnel Rules and Regulations Manual Effective Date: 6/16/2010 $ d. While awaiting entry into active duty, such period as may be reasonable to enable the employee to address personal matters prior to such extended active duty; e. The period immediately following eligible period(s), as defined under "Reinstatement" of this policy, while reinstatement with County government is pending, provided the employee applies for such reinstatement within the time limits defined. (Note: It is the employee's responsibility to apply for reinstatement within the time limit defined.) f. Employees hospitalized for, or convalescing from, an injury or illness incurred in, or aggravated during the performance of extended active duty, except that such period shall not exceed two years beyond their release from extended active duty under honorable conditions. Also, the employee shall be entitled to leave without pay for the period from the time of release by the physician until actually reinstated in County employment, provided the employee applies for such reinstatement within the time limits defined; g. Duties resulting from disciplinary action imposed by military authorities; h. Inactive duty training (drills) performed for the convenience of the member, such as equivalent training, split unit assemblies, make -up drills, etc. 5. Any employee has the discretion when they are on military leave without pay to use compensatory, vacation or sick leave, as appropriate to retain their both their military and County pay. Compensatory pay must be used prior to using vacation or sick pay. D. Advance Notice of Leave for Military Service Requirement. The employee must provide at least 30 days notice or notice as far in advance as is reasonable under the circumstances of their leave for military service. The notice of leave may either be written or oral. Notice may be provided to the Supervisor or the Human Resource Department by either the employee or by an appropriate officer in the military branch in which the employee will be serving. However, no notice is required under the following circumstances: Military necessity prevents the giving of notice of leave; or 2. The giving of notice of leave is otherwise impossible or unreasonable. Issue Date: 6/16/ 2010 Page 4 Orange County Personnel Rules and Regulations Manual Effective Date: 6/16/2010 9 E. Duration of Service. An employee is entitled to a leave of absence for uniformed services for a cumulative period of up to five (5) years to retain reemployment rights with the County. Most types of services will be cumulatively counted in the computation of the five year period with the following exceptions: Service required beyond five years to complete an initial period of obligated service; 2. Service from which a person, through no fault of the person, is unable to obtain a release within the five -year limit; 3. Required training for reservists and National Guard members; 4. Service under an involuntary order to, or to be retained on, active duty during domestic emergency or national security related situations; 5. Service under an order to, or to remain on, active duty (other than for training) because of a war or national emergency declared by the President or Congress; 6. Active duty (other than for training) by volunteers supporting "operational missions" for which Selected Reservists have been ordered to active duty without their consent This exemption from the five -year limitation covers persons who are called to active duty after volunteering to support operational missions. Persons involuntarily ordered to active duty for operational missions would be covered by the fourth exemption, above; 7. Service by volunteers who are ordered to active duty in support of a "critical mission or requirement" in times other than war or national emergency and when no involuntary call up is in effect; and 8. Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States. F. Application for Reemployment. Upon completion of uniformed services, an employee must notify Orange County of their intent to return to their pre - service position by either reporting to work or submitting a timely application for reemployment depending upon the length of military service as follows: Service of 1 to 30 days. An employee must report to the Human Resource Department and their Supervisor by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an 8 -hour rest period. If, due to no fault of the Issue Date: 6t16/ 2010 Page 5 Orange County Personnel Rules and Regulations Manual Effective Date: 6/16/2010 10 employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible. 2. Fitness Exam. The time limit for reporting back to work for an employee who is absent from work in order to take a fitness - for - service examination is the same as the one above for employee who is absent for 1 to 30 days. This period will apply regardless of the length of the employee's absence. 3. Service of 31 to 180 days. An application for reemployment must be submitted no later than 14 days after completion of an employee's military service. If submission of a timely application is impossible or unreasonable through no fault of the employee, the application must be submitted as soon as possible. 4. Service of 181 or more days. An application for reemployment must be submitted to the County no later than 90 days after completion of an employee's military service. 5. Disability incurred or aggravated. The reporting or application deadlines are extended for up to two years for an employee who is hospitalized or convalescing because of a disability incurred or aggravated during the period of military service. The two -year period will be extended by the minimum time required to accommodate a circumstance beyond the employee's control that would make reporting within the two -year period impossible or unreasonable. 6. Unexcused delay. An employee who fails to report to work or to apply for reemployment within the required time limits will be subject to the rules governing unexcused absences. G. Character of Service. An employee otherwise eligible for reemployment will be disqualified for reemployment if the employees discharge from military service falls within one of these four categories: Separated from uniformed services with a dishonorable or bad conduct discharge; 2. Separated from uniformed service under other than honorable conditions; 3. Dismissal of a commissioned office in certain situations involving a court martial or by order of the President in time of war. 4. Dropping an individual from the roles when the individual has been absent without authority for more than three months or is imprisoned by a civilian court. Issue Date: 6/16/2010 Page 6 Orange County Personnel Rules and Regulations Manual Effective Date: 6/16/2010 11 H. Documentation Required Upon Return. An employee who is absent for a period of service of 31 days or more shall provide documentation demonstrating that: The employee's application for reemployment is timely; 2. The employee has not exceeded their five year service limitation; and 3. The employee's separation from service was other than disqualifying under Section G above. 4. Unavailable Documentation. a. If an employee does not provide satisfactory documentation because it does not exist, they will still be reemployed. However, if after reemploying the individual, documentation becomes available that show one or more of the reemployment requirements were not met, disciplinary action may be taken up to and including - termination from County employment. b. If a person is absent for 91 or more days, and the County is not making retirement contribution, the County may delay making retroactive retirement contributions until the person submits satisfactory documentation. However, for employees absent for 90 or fewer days retirement contributions will be made. Reinstatement. An employee will be promptly reemployed when they return from a period of service into the position; the employee would have been entitled to, with a reasonable certainty, if not for the absence due to uniformed service. 1. Reinstatement Position. Reinstatement shall be to the position they would have likely achieved had they remained continuously employed (escalator position); or, if the period of uniformed service was in excess of 90 days, their escalator position, or one of like seniority, status and pay. In the case of reemployment, such reemployment is to be promptly effective. 2. Break in Service. An absence from employment due to or necessitated by uniformed service is not considered a break in service. An employee is entitled to seniority and seniority -based rights and benefits they had on the date of service began, plus any seniority and seniority -based rights they would have attained had they remained continuously employed by the County. 3. Disabled Employees. An employee who has a disability that incurred in, or aggravated during the period of services, to the extent that the duties of the escalator position cannot be performed, the employee shall be Issue Date: 6/16/ 2010 Page 7 Orange County Personnel Rules and Regulations Manual Effective Date: 6/16/2010 12 reinstated to a position most nearly comparable to the escalator position, with duties compatible with the disability and without loss of seniority. 4. An employee's Rate of Pay upon Reinstatement. The employee's salary upon reinstatement shall be based on the salary rate applicable to the proper escalator position. In no case will the reinstated employee's salary be less than when placed in a military leave status. If the employee was in trainee status at the time of military leave, the addition of trainee adjustments may be considered, at the discretion of the department director in consultation with the Human Resources Director, if it can be determined that military experience was directly related to development in the area of work to be performed in the County position. The addition of trainee adjustments must be made if it can be shown that progression within or through such status is based merely upon the passage of time with satisfactory performance. A cost -of- living adjustment should be included in the reinstatement pay. The addition of performance bonuses is determined in the same manner as any other employee on leave without pay. J. Civil Air Patrol. When performing missions or encampments, authorized and requested by the U.S. Air Force or emergency missions for the State at the request of the Governor or the Secretary, Department of Crime Control and Public Safety, members of the Civil Air Patrol are entitled to military leave with pay not to exceed 120 hours (prorated for part-time employees) in any calendar year. Such service may be verified by the Secretary of the Department of CCPS upon request by the County. Regularly scheduled unit training assemblies, usually occurring on weekends are not acceptable for military leave, however, departments are encouraged to arrange work schedules to allow employees to attend this training. K. State Militia. Members of the State Defense Militia are not subject to obligatory service unless they are assigned to a unit that is ordered or called out by the Governor. Only under the following conditions are County employees entitled to military leave with pay: Infrequent special activities in the interest of the State, usually not exceeding one day, when so ordered by the Governor or his authorized representative. 2. State duty for missions related to disasters, search and rescue, etc., again, only when ordered by the Governor or his authorized representative. 3. Under these conditions, an employee may be granted military leave not to exceed 120 hours (prorated for part-time employees) during any calendar year. Issue Date: 6/16/ 2010 Page 8 Orange County Personnel Rules and Regulations Manual Effective Date: 6/16/2010 13 4. County employees who are members of the State Defense Militia are not entitled to military leave with pay when volunteering for support of functions or events sponsored by civic or social organizations even though such support has been "authorized." 5. Regularly scheduled unit training assemblies, usually occurring on weekends, are not acceptable for military leave; however, departments are encouraged to arrange work schedules to allow the employee to attend this training. 6. Duty status may be verified with the Office of the Adjutant General, North Carolina National Guard, ATTN: Vice Chief of Staff - State Operations (VCSOP). L. Retirement Compensation. Differential pay does not meet the statutory definition of "compensation" for retirement purposes. Thus, retirement contributions shall not be reported to the Retirement System on differential pay. The employee shall receive retirement service credit for periods of service in accordance with Retirement System regulations. (See Retirement System Handbook for further details.) M. Health Insurance. When on state duty, the County continues to pay for health coverage for members of the National Guard. When on federal active duty, the County will pay for coverage in the County Health Plan for at least 30 days from the date of active service pursuant to the orders. Partial premiums are not accepted; therefore, if a full premium is paid to cover a partial month, coverage will also continue to the end of that month. After that, the employee may choose to continue coverage in the County Health Plan by paying the full premium. N. Service Credit. During periods eligible for military leave without pay, the employee shall continue to earn time toward total County service if reinstated within the time limits outlined in the Reinstatement Section. O. Longevity Pay. If eligible, a longevity payment computed on a prorated basis shall be paid. The balance will be paid when the employee returns and completes a full year. Then, a full payment will be made on the employee's longevity date that was established before going on leave without pay. P. Leave. The employee shall not accumulate vacation or sick leave while on military leave for more than 30 days. Issue Date: 6/16/ 2010 Page 9