§ 29:38 — Reemployment of persons called to duty in state military forces and national guard of

§38. Reemployment of persons called to duty in state military forces and national guard of
other states
A. Any person who is called or ordered to active duty in the service of the national
guard of this state or of any other state, the state militia or any other military force of this
state and who has performed satisfactorily, shall, upon his release and return from such
military duty or recovery from disease or injury resulting therefrom, under honorable
conditions, be reinstated in or restored to the same or comparable position of employment,
except a temporary position, which he held at the time he was called to such duty. Such
person shall report to his place of employment within seventy-two hours after his release
from duty or recovery from disease or injury resulting therefrom, as the case may be, and his
employer or his employer's successor, whether an agency of the state or its political
subdivision or a private employer, shall reinstate or restore such person in the same or
comparable position which he left at the time of his call to duty at no less compensation than
that which he was receiving at the time of his call to duty or to a position of like seniority,
status, benefits, and pay. However, if such person is not qualified or capable of performing
the essential functions and duties of the same position by reason of disability sustained
during his call to duty, but is otherwise qualified by reason of education, training, or
experience to perform another position in the employ of the employer or his successor, the
employer or his successor shall employ such person in that other or comparable position, the
essential functions and duties of which he is physically capable and qualified to perform, that
will provide like seniority, status, benefits, and pay provided the employment does not pose
a direct threat or significant risk to the health and safety of the individual or others that
cannot be eliminated by reasonable accommodation. Any such person called to duty shall,
if he has performed satisfactorily and has been released under honorable conditions, be
entitled to a certificate to that effect, signed by such person's commanding officer.
B. Any person who is restored to his position in accordance with the provisions of
Subsection A of this Section, shall be considered as having been on temporary leave of
absence during the period for which he is called to active duty, shall be restored without loss
of seniority, shall be entitled to participate in any benefits offered by the employer pursuant
to established rules and practices relating to employees on leave of absence in effect with the
employer at the time such person was called to duty as provided herein, and shall not be
discharged from such position without cause within one year after restoration to the position.
C. It is understood and declared to be the intent of this Section that any person who
is restored to a position in accordance with the provisions of Subsections A and B shall be
so restored in such manner as to give him such status in his employment as he would have
enjoyed if he had continued in such employment continuously from the time of his answering
the call to state duty until the time of his restoration to such employment.
D. In the event any employer or his successor fails or refuses to comply with the
provisions of this Section, mandamus proceedings may be instituted in the district court in
and for the parish in which the employer or his successor maintains a place of business,
specifically to require such employer or his successor to comply with such provisions and
to compensate such person for any loss of wages or benefits suffered by reason of such
employer's action, and any such compensation shall be in addition to and shall not be deemed
to diminish any of the benefits of such provisions. Upon application to the district attorney
of the parish or comparable official in which the employer or his successor maintains a place
of business, by any person claiming to be entitled to the benefits of such provisions, the
district attorney or official, if reasonably satisfied that the person so applying is entitled to
such benefits, shall appear and act as attorney for such person in the amicable adjustment of
the claim or in the filing of an appropriate pleading and the prosecution thereof specifically
to require the employer or his successor to comply with the provisions. No fees or court
costs shall be taxed against any person who may apply for such benefits. The employer or
his successor shall be deemed the only necessary party defendant to any such action.
E. In any case in which two or more persons who are entitled to be restored to a
position under the provisions of this Section or of any law relating to similar reemployment
or reinstatement benefits left the same position in order to enter the state call to duty, the
person who left the position first shall have the prior right to be restored thereto, without
prejudice to the reemployment rights of the other person or persons to be restored.
F. The secretary of Louisiana Works or the director of the state Department of Civil
Service shall render aid in the reinstatement of persons to their positions in accordance with
the provisions of this Section.

Legislative History

Acts 1974, No. 622, §1; Acts 1992, No. 447, §4; Acts 2002, 1st Ex. Sess., No. 57, §1, eff. April 18, 2002; Acts 2008, No. 743, §7, eff. July 1, 2008.