§ 242 — Rights of public officers and employees absent on military duty as members of the organized militia or of reserve forces or reserve compo...

§ 242. Rights of public officers and employees absent on military duty\nas members of the organized militia or of reserve forces or reserve\ncomponents of the armed forces of the United States. 1. Definitions. (a)\nPublic officer or employee. The term "public officer or employee", as\nused in this section, shall include every person, by whatsoever title,\ndescription or designation known, who receives any pay, salary or\ncompensation of any kind from the state or a municipal corporation or\nany other political subdivision thereof, or who is in any department of\nthe state or in the service of any public authority, but shall not\ninclude a person holding a position in the exempt class of the civil\nservice whose appointment is terminated or whose position is filled by\nother than a substitute appointee.\n (b) Ordered military duty. The term "ordered military duty", as used\nin this section, shall mean:\n Any military duty performed in the service of the state or of the\nUnited States, including but not limited to attendance at any service\nschool or schools conducted by the armed forces of the United States, by\na public officer or employee as a member of any force of the organized\nmilitia or of any reserve force or reserve component of the armed forces\nof the United States, pursuant to orders issued by competent state or\nfederal authority, with or without the consent of such public officer or\nemployee. Participation in routine reserve officer training corps\ntraining is not considered to be military duty except when performing\nadvanced training duty as a member of a reserve component of the armed\nforces.\n 2. Leave of absence while engaged in performance of ordered military\nduty. Every public officer or employee shall be entitled to absent\nhimself and shall be deemed to have a leave of absence from his duties\nor service as such public officer or employee while engaged in the\nperformance of ordered military duty and while going to and returning\nfrom such duty.\n 3. Leave of absence while attending service schools. Every public\nofficer or employee who is or becomes a voluntary member of any force of\nthe organized militia or of any reserve force or reserve component of\nthe armed forces of the United States shall be entitled to absent\nhimself and shall be deemed to have a leave of absence from his duties\nor service as such public officer or employee while in attendance, as a\nmember of such force or reserve components, at any service school or\nschools conducted by the armed forces of the United States, and while\ngoing to and returning from such school or schools, notwithstanding that\norders for such attendance are or may be issued with the consent of such\npublic officer or employee.\n 3-a. Leave of absence while performing full-time training duty or\nactive duty for training with or in an armed force of the United States.\nEvery public officer or employee who is or becomes a member of any force\nof the organized militia or of any reserve force or reserve component of\nthe armed forces of the United States shall be entitled to absent\nhimself and shall be deemed to have a leave of absence from his duties\nor service as such public officer or employee while performing, as a\nmember of such force or reserve component, initial full-time training\nduty or initial active duty for training with or in an armed force of\nthe United States under the provisions of this chapter or the laws of\nthe United States or both, and while going to and returning from such\nfull-time training duty or active duty for training, notwithstanding\nthat orders for such duty are or may be issued with the consent of such\npublic officer or employee.\n 4. Employment rights. Time during which a public officer or employee\nis absent pursuant to the provisions of subdivisions two, three and\nthree-a of this section shall not constitute an interruption of\ncontinuous employment and, notwithstanding the provisions of any\ngeneral, special or local law or the provisions of any city charter, no\nsuch officer or employee shall be subjected, directly or indirectly, to\nany loss or diminution of time service, increment, vacation or holiday\nprivileges, or any other right or privilege, by reason of such absence,\nor be prejudiced, by reason of such absence, with reference to\ncontinuance in office or employment, reappointment to office,\nre-employment, reinstatement, transfer or promotion.\n 5. Pay for military duty. (a) Every public officer or employee shall\nbe paid his or her salary or other compensation as such public officer\nor employee for any and all periods of absence while engaged in the\nperformance of ordered military duty, and while going to and returning\nfrom such duty, not exceeding a total of thirty days or twenty-two\nworking days, whichever is greater, in any one calendar year and not\nexceeding thirty days or twenty-two working days, whichever is greater,\nin any one continuous period of such absence.\n (b) Every public officer or employee employed by the state of New York\nwho served in a combat theater or combat zone of operations as\ndocumented by a copy of his or her DD214, certificate of release or\ndischarge from active duty, or other applicable department of defense\ndocumentation, shall be paid his or her salary or other compensation as\nsuch public officer or employee for any and all periods of absence while\nutilizing any healthcare related services related to such duty, not\nexceeding five working days, in any one calendar year.\n (c) Public officers or employees, as defined by paragraph (a) of\nsubdivision one of this section, who are not employees of the state of\nNew York and therefore not entitled to the benefits contained in\nparagraph (b) of this subdivision, who have served in a combat theater\nor combat zone of operations as documented by a copy of his or her\nDD214, certificate of release or discharge from active duty, or other\napplicable department of defense documentation, may be entitled to\nadditional paid leave for health related services related to duty in a\ncombat theater or combat zone of operations. The governing body of a\nmunicipal corporation may, in its sole discretion, adopt a resolution or\nlocal law providing for the payment of the salary or other compensation\nof such public officers or employees for any and all periods of absence\nwhile utilizing healthcare related services related to duty in a combat\ntheater or combat zone of operations, not exceeding five working days,\nin any one calendar year. Any such local law or resolution adopted must\napply to both combat theater veterans and combat zone of operations\nveterans employed by such public employer. Nothing in this paragraph\nshall be construed to diminish the rights, privileges, or remedies of\nany employee under any collective bargaining agreement.\n 5-a. Pay for employees of a city with a population of one million or\nmore. This subdivision shall govern the calculation of compensation and,\nwhere applicable, repayment of same by public officers or employees of a\ncity with a population of one million or more who are engaged in the\nperformance of ordered military duty, including time spent traveling to\nand returning from such duty. In any conflict between this subdivision\nand any other provision of law with respect to such public servant\nsoldiers, this subdivision shall be controlling.\n (a) Definitions. As used in this subdivision:\n (i) "Base pay of city salary" means the base pay received by a public\nofficer or employee from employment by a city. For public officers and\nemployees who, prior to the effective date of this subdivision, elected\nto participate in a "full pay/repayment plan", have returned to city\nemployment from ordered military duty as of the effective date of this\nsubdivision and are, on the effective date of this subdivision, public\nofficers or employees, the base pay of city salary shall be calculated\nby the implementing agency as the salary received by the public servant\nsoldier as of the effective date of this subdivision or the date of\nreturn to city service, whichever is later.\n For public officers and employees who, prior to the effective date of\nthis subdivision, elected to participate in a "full pay/repayment plan"\nand who return to city employment from ordered military duty after the\neffective date of this subdivision, the base pay of city salary shall be\ncalculated on the date of return to city employment.\n For public officers and employees who, prior to the effective date of\nthis subdivision, elected to participate in a "full pay/repayment plan"\nand who have, by the effective date of this subdivision, already\nseparated from city employment in a manner other than by retirement, and\nexcept where the implementing agency shall determine the existence of\nhardship, the base pay of city salary shall be calculated as the salary\nreceived by the public servant soldier as of the date of separation from\ncity service.\n For public officers and employees who, prior to the effective date of\nthis subdivision, elected to participate in a "full pay/repayment plan"\nand who separate from city employment in a manner other than retirement\nafter the effective date of this subdivision, and except where the\nimplementing agency shall determine the existence of hardship, the base\npay of city salary shall be calculated as the salary received by the\npublic servant soldier as of the date of return to city service.\n (ii) "Balloon payment" means the payment required for full\nsatisfaction of any remaining outstanding repayment obligation after ten\nyears from the date of return from ordered military duty pursuant to\nparagraph (e) of this subdivision.\n (iii) "City" means a city with a population of one million or more.\n (iv) "City salary" means the gross salary received by a public officer\nor employee from employment by a city, before taxes, deductions, or\ncourt-ordered payments, required or voluntary; but excluding payments by\na city as employer for health, pension, and other benefits.\n (v) "Covered operation" means those military operations designated by\nthe federal government of the United States, in support of "Operation\nEnduring Freedom", "Operation Iraqi Freedom", "Operation Noble Eagle",\nor successors thereto, or operations specifically connected by federal\ndesignation, action or implication with homeland security. The\nimplementing agency may make such additional designations on a\ncase-by-case basis as it shall deem, in its discretion, to be in keeping\nwith the spirit and intent of this subdivision.\n (vi) "Differential pay" means the pay calculated as the difference\nbetween a public servant soldier's military salary and city salary,\nwhere the military salary is less than the city salary.\n (vii) "Full pay/repayment plan" means a salary and benefits plan in\neffect in a city prior to the effective date of this subdivision whereby\na public servant soldier elected to receive city salary while on\nmilitary duty, but is required to repay the lesser of such city salary\nor military salary to a city upon return from military duty.\n (viii) "Implementing agency" means an agency of a city, as designated\nby the mayor of such city in writing, that is authorized to implement\nthe provisions of this subdivision.\n (ix) "Military salary" means the gross salary paid by the government\nof the United States to a public servant soldier for ordered military\nduty in the armed forces of the United States in a covered operation, as\nfurther defined by the implementing agency, provided that such military\npay shall be calculated without regard to such extra or additional\nstipends as hazard pay, housing or food allowances, or other similar\nadditions.\n (x) "Public officer" or "employee" means a public officer or an\nemployee of a city.\n (xi) "Public servant soldier" means a public officer or employee of a\ncity performing ordered military duty in connection with a covered\noperation.\n (b) The mayor of a city shall designate an agency of such city to be\nthe implementing agency that will administer and implement this\nsubdivision. The implementing agency is hereby authorized to and shall:\n (i) provide for the continuation of health insurance benefits, to the\npublic servant soldier and to such public servant soldier's family, if\nthe family had been included in such coverage prior to the public\nservant soldier beginning ordered military duty, under the same terms\nand conditions as applied to such public servant soldier prior to\nleaving city employment for ordered military duty; and\n (ii) provide for hardship under certain conditions determined by the\nimplementing agency for public servant soldiers who elected to\nparticipate in a "full pay/repayment plan". Such conditions shall\ninclude, but shall not be limited to, any material unforeseen or\ncompelling changes in circumstances affecting a public servant soldier's\nability to repay that occurred since such public servant soldier elected\nto participate in the "full pay/repayment plan," including but not\nlimited to injuries sustained while on ordered military duty, or a\ndetermination by the implementing agency that the public servant soldier\nis or will be experiencing severe economic hardship due to a change in\ncircumstances. Relief may include an extension of the repayment term or\na reduction in the percentage of salary dedicated to repayment, or a\nmodification to the requirement for a balloon payment. Such\ndeterminations of economic hardship may be made on a case-by-case basis,\nand the implementing agency may require the provision of such\ninformation by the public servant soldier as it deems necessary to make\nsuch determination.\n (c) Subdivision five of this section or any other law to the contrary\nnotwithstanding, until August first, two thousand ten, unless the mayor\nof a city, in his or her discretion, extends such date, a public officer\nor employee shall be paid city salary as such public officer or employee\nfor any and all periods of absence while engaged in the performance of\nordered military duty, and while going to and returning from such duty,\nnot exceeding thirty working days in any one calendar year and not\nexceeding thirty working days in any one continuous period of such\nabsence.\n (d) Subdivision five of this section or any other law to the contrary\nnotwithstanding, until August first, two thousand ten, unless the mayor\nof a city, in his or her discretion, extends such date, a public servant\nsoldier shall, after having received the city salary to which he or she\nis entitled pursuant to paragraph (c) of this subdivision, be paid\ndifferential pay thereafter on his or her regularly scheduled pay period\nfor the duration of such ordered military duty, if such ordered military\nduty is in connection with a covered operation. No repayment shall be\nrequired to the city for such differential pay received by a public\nservant soldier, provided that this prohibition on repayment shall not\napply in the case of a material error in calculation that results in an\nunwarranted increase to the public servant soldier. Repayment of any\nsuch overage shall be governed by the terms of paragraph (e) of this\nsubdivision.\n (e) A public officer or employee who, prior to the effective date of\nthis subdivision, elected to participate in a "full pay/repayment plan"\nand, in having done so, incurred a repayment obligation, shall make\nrepayments in accordance with terms adopted by the implementing agency,\nexcept that, with respect to such repayment obligations, such officer or\nemployee shall have satisfied the obligation to repay when he or she has\nrepaid eighty-five percent of the amount of city salary or military\nsalary, whichever is less, less other such discounts implemented by the\nimplementing agency as of the effective date of this subdivision and\nsuch incentives as may be implemented by the implementing agency to\nencourage payment, and no such term shall:\n (i) require a public officer or employee, while employed by such city,\nto pay in any pay period more than seven and one-half percent of his or\nher base pay of city salary toward satisfying his or her repayment\nobligation, except that a term may provide for full satisfaction of any\nremaining outstanding repayment obligation after ten years from the date\nof return from ordered military duty; or\n (ii) require a retired public officer or employee to pay, in any\nmonth, an amount more than seven and one-half percent of his or her\nmonthly pension payment, except that a term may provide for full\nsatisfaction of any remaining outstanding repayment obligation after ten\nyears from the date of return from ordered military duty; or\n (iii) require a public officer or employee separated from employment\nby such city in a manner other than by retirement, to pay, in any year,\nan amount more than seven and one-half percent of the base pay of city\nsalary, except that a term may provide for full satisfaction of any\nremaining outstanding repayment obligation after ten years from the date\nof return from ordered military duty.\n (f) Notwithstanding paragraph (e) of this subdivision, a city shall\nnot require the satisfaction of any repayment obligation in the event\nthat a public servant soldier is killed in the performance of ordered\nmilitary duty.\n 6. Rights and contributions under retirement systems. (a) The amount\nof required contributions to any pension or retirement system of which a\npublic officer or employee absent while engaged in the performance of\nordered military duty is a member shall be deducted from the salary or\nother compensation paid to him as such public officer or employee as\nprovided in this section. If such required contributions exceed the\namount of such salary or other compensation to which a public officer or\nemployee is entitled while engaged in the performance of military duty,\nthe amount of such salary or other compensation shall be applied upon\nsuch required contributions and such public officer or employee shall\nhave the right to pay to such pension or retirement system the amount by\nwhich such contributions exceed such salary or other compensation. Such\npublic officer or employee shall also have the right to pay to such\nsystem, for any period of such absence during which he shall receive no\nsalary or other compensation as such public officer or employee, the\namount that he would have contributed to such system if he had been\npresent and continuously engaged in the performance of the duties of his\nposition during such period.\n (b) Such payments, other than those deducted from his salary or other\ncompensation as such officer or employee, may be paid from time to time\nat any time while engaged in such ordered military duty or within five\nyears after the date of termination of such ordered military duty, or,\nin the event of the death of such public officer or employee while\nengaged in ordered military duty, such payments, or any part thereof,\nmay be made by the named beneficiary or the legal representative of such\npublic officer's or employee's estate within one year following proof of\nsuch death.\n (c) To the extent that such contributions are paid, absence while\nengaged in the performance of military duty shall be counted in\ndetermining the length of total service under such pension or retirement\nsystem.\n (d) Any such public officer or employee, while engaged in the\nperformance of ordered military duty, or his beneficiary, as the case\nmay be, shall be entitled to all the benefits of the pension or\nretirement system of which he is a member except accidental disability\nretirement and accidental death benefit.\n