§ 243 — Provisions applicable to public employees who are absent on military duty

New York § 243

• Jurisdiction: New York
• Law MIL: Military
• Art. 11: Privileges, Prohibitions and Penalties

Text

§ 243. Provisions applicable to public employees who are absent on\nmilitary duty. 1. Definitions. As used in this section:\n (a) The term "public employee" shall mean an officer or employee\nholding a position by appointment or employment in the state of New York\nor in the cities, counties, towns, villages or school districts thereof,\nor in any other political or civil division of the state or of a\nmunicipality, or in any public or special district, or in the service of\nany public authority, public benefit corporation, commission or board,\nor in any other branch of the public service.\n * (b) The term "military duty" shall mean military service in the\nmilitary, naval, aviation, space or marine service of the United States\nsubsequent to July first, nineteen hundred forty, or service under the\nselective training and service act of nineteen hundred forty, or the\nnational guard and reserve officers mobilization act of nineteen hundred\nforty, or any other act of congress supplementary or amendatory thereto,\nor any similar act of congress hereafter enacted and irrespective of the\nfact that such service was entered upon following a voluntary enlistment\ntherefor or was required under one of the foregoing acts of congress, or\nservice with the United States public health service as a commissioned\nofficer, or service with the American Red Cross while with the armed\nforces of the United States on foreign service, or service with the\nspecial services section of the armed forces of the United States on\nforeign service, or service in the merchant marine which shall consist\nof service as an officer or member of the crew on or in connection with\na vessel documented under the laws of the United States or a vessel\nowned by, chartered to, or operated by or for the account or use of the\ngovernment of the United States, or service by one who was employed by\nthe War Shipping Administration or Office of Defense Transportation or\ntheir agents as a merchant seaman documented by the United States Coast\nGuard or Department of Commerce, or as a civil servant employed by the\nUnited States Army Transport Service (later redesignated as the United\nStates Army Transportation Corps, Water Division) or the Naval\nTransportation Service; and who served satisfactorily as a crew member\nduring the period of armed conflict, December seventh, nineteen hundred\nforty-one, to August fifteenth, nineteen hundred forty-five, aboard\nmerchant vessels in oceangoing, i.e., foreign, intercoastal, or\ncoastwise service as such terms are defined under federal law (46 USCA\n10301 & 10501) and further to include "near foreign" voyages between the\nUnited States and Canada, Mexico, or the West Indies via ocean routes,\nor public vessels in oceangoing service or foreign waters and who has\nreceived a Certificate of Release or Discharge from Active Duty and a\ndischarge certificate, or an Honorable Service Certificate/Report of\nCasualty, from the Department of Defense, or who served as a United\nStates civilian employed by the American Field Service and served\noverseas under United States Armies and United States Army Groups in\nworld war II during the period of armed conflict, December seventh,\nnineteen hundred forty-one through May eighth, nineteen hundred\nforty-five, and who (i) was discharged or released therefrom under\nhonorable conditions, or (ii) has a qualifying condition, as defined in\nsection one of the veterans' services law, and has received a discharge\nother than bad conduct or dishonorable from such service, or (iii) is a\ndischarged LGBT veteran, as defined in section one of the veterans'\nservices law, and has received a discharge other than bad conduct or\ndishonorable from such service, or who served as a United States\ncivilian Flight Crew and Aviation Ground Support Employee of Pan\nAmerican World Airways or one of its subsidiaries or its affiliates and\nserved overseas as a result of Pan American's contract with Air\nTransport Command or Naval Air Transport Service during the period of\narmed conflict, December fourteenth, nineteen hundred forty-one through\nAugust fourteenth, nineteen hundred forty-five, and who (iv) was\ndischarged or released therefrom under honorable conditions, or (v) has\na qualifying condition, as defined in section one of the veterans'\nservices law, and has received a discharge other than bad conduct or\ndishonorable from such service, or (vi) is a discharged LGBT veteran, as\ndefined in section one of the veterans' services law, and has received a\ndischarge other than bad conduct or dishonorable from such service; or\nservice in police duty on behalf of the United States government in a\nforeign country, if such person is a police officer, as defined by\nsection 1.20 of the criminal procedure law, and if such police officer\nobtained the prior consent of their public employer to absent themself\nfrom such police officer's position to engage in the performance of such\nservice; or as an enrollee in the United States maritime service on\nactive duty and, to such extent as may be prescribed by or under the\nlaws of the United States, any period awaiting assignment to such\nservice and any period of education or training for such service in any\nschool or institution under the jurisdiction of the United States\ngovernment, but shall not include temporary and intermittent gratuitous\nservice in any reserve or auxiliary force. It shall include time spent\nin reporting for and returning from military duty and shall be deemed to\ncommence when the public employee leaves their position and to end when\nsuch public employee is reinstated to their position, provided such\nreinstatement is within ninety days after the termination of military\nduty, as hereinafter defined. Notwithstanding the foregoing provisions\nof this paragraph, the term "military duty" shall not include any of the\nforegoing services entered upon voluntarily on or after January first,\nnineteen hundred forty-seven and before June twenty-fifth, nineteen\nhundred fifty; and, on or after July first, nineteen hundred seventy,\nthe term "military duty" shall not include any voluntary service in\nexcess of four years performed after that date, or the total of any\nvoluntary services, additional or otherwise, in excess of four years\nperformed after that date, shall not exceed five years, if the service\nin excess of four years is at the request and for the convenience of the\nfederal government, except if such voluntary service is performed during\na period of war, or national emergency declared by the president.\n * NB Effective until April 1, 2026\n * (b) The term "military duty" shall mean military service in the\nmilitary, naval, aviation, space or marine service of the United States\nsubsequent to July first, nineteen hundred forty, or service under the\nselective training and service act of nineteen hundred forty, or the\nnational guard and reserve officers mobilization act of nineteen hundred\nforty, or any other act of congress supplementary or amendatory thereto,\nor any similar act of congress hereafter enacted and irrespective of the\nfact that such service was entered upon following a voluntary enlistment\ntherefor or was required under one of the foregoing acts of congress, or\nservice with the United States public health service as a commissioned\nofficer, or service with the national oceanic and atmospheric\nadministration as a commissioned officer, or service with the American\nRed Cross while with the armed forces of the United States on foreign\nservice, or service with the special services section of the armed\nforces of the United States on foreign service, or service in the\nmerchant marine which shall consist of service as an officer or member\nof the crew on or in connection with a vessel documented under the laws\nof the United States or a vessel owned by, chartered to, or operated by\nor for the account or use of the government of the United States, or\nservice by one who was employed by the War Shipping Administration or\nOffice of Defense Transportation or their agents as a merchant seaman\ndocumented by the United States Coast Guard or Department of Commerce,\nor as a civil servant employed by the United States Army Transport\nService (later redesignated as the United States Army Transportation\nCorps, Water Division) or the Naval Transportation Service; and who\nserved satisfactorily as a crew member during the period of armed\nconflict, December seventh, nineteen hundred forty-one, to August\nfifteenth, nineteen hundred forty-five, aboard merchant vessels in\noceangoing, i.e., foreign, intercoastal, or coastwise service as such\nterms are defined under federal law (46 USCA 10301 & 10501) and further\nto include "near foreign" voyages between the United States and Canada,\nMexico, or the West Indies via ocean routes, or public vessels in\noceangoing service or foreign waters and who has received a Certificate\nof Release or Discharge from Active Duty and a discharge certificate, or\nan Honorable Service Certificate/Report of Casualty, from the Department\nof Defense, or who served as a United States civilian employed by the\nAmerican Field Service and served overseas under United States Armies\nand United States Army Groups in world war II during the period of armed\nconflict, December seventh, nineteen hundred forty-one through May\neighth, nineteen hundred forty-five, and who (i) was discharged or\nreleased therefrom under honorable conditions, or (ii) has a qualifying\ncondition, as defined in section one of the veterans' services law, and\nhas received a discharge other than bad conduct or dishonorable from\nsuch service, or (iii) is a discharged LGBT veteran, as defined in\nsection one of the veterans' services law, and has received a discharge\nother than bad conduct or dishonorable from such service, or who served\nas a United States civilian Flight Crew and Aviation Ground Support\nEmployee of Pan American World Airways or one of its subsidiaries or its\naffiliates and served overseas as a result of Pan American's contract\nwith Air Transport Command or Naval Air Transport Service during the\nperiod of armed conflict, December fourteenth, nineteen hundred\nforty-one through August fourteenth, nineteen hundred forty-five, and\nwho (iv) was discharged or released therefrom under honorable\nconditions, or (v) has a qualifying condition, as defined in section one\nof the veterans' services law, and has received a discharge other than\nbad conduct or dishonorable from such service, or (vi) is a discharged\nLGBT veteran, as defined in section one of the veterans' services law,\nand has received a discharge other than bad conduct or dishonorable from\nsuch service; or service in police duty on behalf of the United States\ngovernment in a foreign country, if such person is a police officer, as\ndefined by section 1.20 of the criminal procedure law, and if such\npolice officer obtained the prior consent of their public employer to\nabsent themself from such police officer's their position to engage in\nthe performance of such service; or as an enrollee in the United States\nmaritime service on active duty and, to such extent as may be prescribed\nby or under the laws of the United States, any period awaiting\nassignment to such service and any period of education or training for\nsuch service in any school or institution under the jurisdiction of the\nUnited States government, but shall not include temporary and\nintermittent gratuitous service in any reserve or auxiliary force. It\nshall include time spent in reporting for and returning from military\nduty and shall be deemed to commence when the public employee leaves\ntheir position and to end when such public employee they are reinstated\nto their position, provided such reinstatement is within ninety days\nafter the termination of military duty, as hereinafter defined.\nNotwithstanding the foregoing provisions of this paragraph, the term\n"military duty" shall not include any of the foregoing services entered\nupon voluntarily on or after January first, nineteen hundred forty-seven\nand before June twenty-fifth, nineteen hundred fifty; and, on or after\nJuly first, nineteen hundred seventy, the term "military duty" shall not\ninclude any voluntary service in excess of four years performed after\nthat date, or the total of any voluntary services, additional or\notherwise, in excess of four years performed after that date, shall not\nexceed five years, if the service in excess of four years is at the\nrequest and for the convenience of the federal government, except if\nsuch voluntary service is performed during a period of war, or national\nemergency declared by the president.\n * NB Effective April 1, 2026\n (c) The term "termination of military duty" shall mean the date of a\ncertificate of honorable discharge or a certificate of completion of\ntraining and service as set forth in the selective training and service\nact of nineteen hundred forty, and the national guard and reserve\nofficers mobilization act of nineteen hundred forty or, or a certificate\nof release or discharge from active duty where an employee (i) has a\nqualifying condition, as defined in section one of the veterans'\nservices law, and has received a discharge other than bad conduct or\ndishonorable from such service, or (ii) is a discharged LGBT veteran, as\ndefined in section one of the veterans' services law, and has received a\ndischarge other than bad conduct or dishonorable from such service, or\nin the event of the incurrence of a temporary disability arising out of\nand in the course of such military duty, the date of termination of such\ndisability. The existence and termination of such temporary disability,\nin the case of a public employee occupying a position in the classified\ncivil service or of a person on an eligible list for a position in such\nservice, shall be determined by the civil service commission having\njurisdiction over such position and, in the case of a public employee\noccupying a position not in the classified civil service, shall be\ndetermined by the officer or body having the power of appointment.\n (d) The term "position" shall mean the office or position held by a\npublic employee at the time of his entrance upon military duty.\n 2. Leave of absence and re-employment. (a) Every public employee shall\nbe entitled to absent himself or herself from his or her position while\nengaged in the performance of military duty, except for those police\nofficers who are required by paragraph (b) of subdivision one of this\nsection to obtain the prior consent of their public employers before\nabsenting themselves from their positions for military service, who\naccordingly shall be entitled to absent themselves from their positions\nonly after obtaining such prior consent, and shall be deemed to have a\nleave of absence for the duration of such military duty. Such public\nemployee shall be reinstated to his position as soon as possible\nprovided he makes application for such reinstatement within ninety days\nafter the termination of his military duty, or at any time during his\nterminal leave. Thereafter, he may be so reinstated, at any time after\nsuch ninety-day period and within one year after the termination of his\nmilitary duty, in the discretion of the appointing officer or body.\n (b) A public employee who resigned from his position during his\nmilitary duty, or within six months prior to the commencement of such\nmilitary duty, may, in the discretion of the appointing officer or body,\nbe reinstated to his position within one year after the date of his\nresignation, excluding from said period the time he was on military\nduty. Every public employee reinstated under the provisions of this\nsubdivision or pursuant to subdivision one-a of rule sixteen of the\nrules for the classified civil service for the state or pursuant to any\ncomparable rule of a municipal civil service commission, shall be deemed\nto have been on a leave of absence for the duration of his military\nduty.\n 3. Substitutes. A position held by a public employee who is absent on\nmilitary duty shall, so far as practicable, be continued in existence\nbut shall be deemed temporarily vacant and shall be filled only when the\npublic interest so requires. Any appointment to fill such vacancy shall\nbe designated as a substitute appointment and the request for\ncertification, the certification and the indicia of appointment shall\nshow that the person is being appointed as a substitute. Any public\nemployee, who accepts appointment as a substitute shall be granted a\nleave of absence from his former position until the termination of such\nappointment and the temporary vacancy resulting from such leave of\nabsence shall be filled in like manner only when the public interest so\nrequires and any appointment to such position shall also be designated\nas a substitute appointment and the request for certification, the\ncertification and the indicia of appointment shall show that the person\nis being appointed to such position as a substitute. Every such\nsubstitute appointment shall be for a period not exceeding the leave of\nabsence of the former incumbent and shall be made in accordance with the\nprovisions of law applicable to such position, provided, however, that\nsuch substitute appointment may be continued for a period in excess of\none year, notwithstanding the provisions of section fifteen of the civil\nservice law. Such substitute employee shall acquire no right to\npermanent appointment or tenure by virtue of his service as a substitute\nand such service may be terminated at any time in the discretion of the\nappointing officer or body. His rights, if any, with respect to\nappointment or tenure, shall not, however, be impaired in any way by his\nacceptance of an appointment as a substitute and his name shall remain\non any eligible or other list and he shall be certified as eligible for\nany other appointment authorized by law during the existence of such\nlist.\n The appointment of a substitute shall terminate (a) upon the return of\nthe former incumbent to his position or (b) upon the death or permanent\ntotal disability of the former incumbent or (c) upon failure of the\nformer incumbent to return to said position within ninety days after the\ntermination of his military duty or (d) upon the appointment or\npromotion of the former incumbent to another position as authorized by\nsubdivision six of this section, and, upon the happening of any of such\nevents, said position may then be filled in the manner provided by law.\n 4. Pensions. Any public employee who is a member of any pension or\nretirement system may elect, while on military duty, to contribute to\nsuch pension or retirement system the amount which he would have\ncontributed had his employment been continuous and upon making such\ncontribution he shall have the same rights in respect to membership in\nthe retirement system as he would have had if he had been present and\ncontinuously engaged in the performance of the duties of his position.\n Time during which a member is absent on military duty shall not\nconstitute an interruption of continuous employment, but such time shall\nnot be counted or included in determining the length of total service\nunless such member contributes to the retirement system the amount he or\nshe would have been required to contribute if he or she had been\ncontinuously employed during such period. Such contribution, or any part\nthereof, may be paid at any time and from time to time, while in\nmilitary duty, or within five years after the date of his or her\nrestoration to his or her position or before December thirty-first,\nnineteen hundred sixty-two, whichever date is later, or in the event of\nthe death of the member while in military duty such contribution, or any\npart thereof, may be paid by the named beneficiary or the legal\nrepresentative of the member's estate within one year following proof of\nsuch death. A member of the New York state employees' retirement system\nor of the New York state and local police and fire retirement system,\nother than a member of the state police in a collective negotiating unit\nestablished pursuant to article fourteen of the civil service law, who\nis in the employ of the state on March thirty-first, nineteen hundred\nseventy, who failed to make such contributions during the prescribed\nperiod of time may nonetheless obtain credit for time during which he or\nshe was on military duty by depositing with such retirement system an\namount equal to the contribution he or she would have made had he or she\nmade a timely election, with regular interest, on or before March\nthirty-first, nineteen hundred seventy-two, provided, however, such\nmember may elect to deposit such amount over a period of time no greater\nthan the period for which credit is being claimed, in which case such\npayments must commence no later than March thirty-first, nineteen\nhundred seventy-two. If the full amount of such payments is not paid to\nthe retirement system, the amount of service credited shall be\nproportional to the total amount of the payments made. A member of the\nNew York state and local police and fire retirement system who is a\nmember of the state police in a collective negotiating unit established\npursuant to article fourteen of the civil service law, who is in the\nemploy of the state on March thirty-first, nineteen hundred seventy-one,\nwho failed to make such contributions during the prescribed period of\ntime may nonetheless obtain credit for time during which he or she was\non military duty by depositing with such retirement system an amount\nequal to the contribution he or she would have made had he or she made a\ntimely election, with regular interest, on or before March thirty-first,\nnineteen hundred seventy-two, provided, however, such member may elect\nto deposit such amount over a period of time no greater than the period\nfor which credit is being claimed, in which case such payments must\ncommence no later than March thirty-first, nineteen hundred seventy-two.\nIf the full amount of such payments is not paid to the retirement\nsystem, the amount of service credited shall be proportional to the\ntotal amount of the payments made.\n A member of the New York state teachers' retirement system, whose\nservice terminates on the expiration of his contract, and for whom there\nis no employer to cover the cost of his accruing pension rights while in\nmilitary service following the cessation of his contract, may pay in\naddition to his own contributions, an amount equal to the percentage of\nhis salary which his employer would have paid had he remained under\ncontract, which contributions shall be paid into the pension\naccumulation fund of the aforementioned retirement system and be treated\nas if they had been continued by his employer except that in the event\nof his death as a member prior to retirement or on his withdrawal of his\naccumulated contributions from the system, the amounts so paid by him\nshall be returnable, with regular interest, as if they were a part of\nhis accumulated contributions. Such contributions or any parts thereof\nmay be paid at any time and from time to time while in military duty or\nwithin five years after the member has returned to public school\nteaching in New York state or before December thirty-first, nineteen\nhundred sixty-two, whichever date is later.\n Any such member, while on military duty, or his beneficiary, as the\ncase may be, shall be entitled to all benefits of the retirement system\nof which he is a member except accidental disability retirement and\naccidental death benefit.\n Any public employee holding a position by appointment who is or was a\nmember of any pension or retirement system and who, while such member\nand while on military duty, applied for retirement as a member of such\nsystem to take effect within thirty days prior to the date of expiration\nof his appointment and who shall accordingly have been retired pursuant\nto such application but thereafter and within thirty days after the\neffective date of such retirement shall have been reappointed to his\nsaid position and shall have applied thereafter, before or upon his\nrelease from military duty, for membership in such pension or retirement\nsystem, shall be deemed to have had continuous membership in such\npension or retirement system and shall be entitled to all the rights,\nbenefits and privileges under his contract of membership as it existed\nat the time of such retirement, provided he shall (1) return any\npension, annuity and retirement allowance payments received by him\nduring the period of such retirement, (2) consent to the termination of\nhis right to receive pension, annuity or retirement allowance payments\non the basis of such retirement, (3) pay into the appropriate fund of\nsuch pension or retirement system the amount he would have contributed\nthereto, if he had not so retired, on the basis of the salary he was\nreceiving when he so retired, and (4) pay into the appropriate fund of\nsuch pension or retirement system the amount which his employer would\nhave paid thereto on his account if he had continued as a member during\nsuch period of retirement.\n 4-a. Notwithstanding the provisions of subdivision four of this\nsection, in any case where any member of any pension or retirement\nsystem maintained under any provision of the administrative code of the\ncity of New York, or under section twenty-five hundred seventy-five of\nthe education law, did not, within five years after the date of the\nrestoration of such member to his position, pay the contribution\nrequired by such subdivision four to be paid within such period, as a\nprerequisite to obtaining service credit in such system for the period\nof his military duty, such contribution, or any part thereof remaining\ndue, may be paid on or before June thirtieth, nineteen hundred\nfifty-seven, provided that any such member who, on or before such\nlast-mentioned date, retires or is retired, without having paid such\ncontribution, shall not be entitled to make such payment.\n 4-b. (a) As used in this subdivision, the following terms shall mean\nand include:\n (1) "New York city veteran of world war II". Any member of the New\nYork city employees' retirement system in city-service who, after his or\nher last membership in such system began, served as a member of the\narmed forces of the United States during the period beginning on\nDecember seventh, nineteen hundred forty-one and ending on December\nthirty-first, nineteen hundred forty-six, and (i) was honorably\ndischarged or released under honorable circumstances from such service,\nor (ii) has a qualifying condition, as defined in section one of the\nveterans' services law, and has received a discharge other than bad\nconduct or dishonorable from such service, or (iii) is a discharged LGBT\nveteran, as defined in section one of the veterans' services law, and\nhas received a discharge other than bad conduct or dishonorable from\nsuch service.\n (2) "New York city veteran of the Korean conflict." Any member of the\nNew York city employees' retirement system in city-service who, after\nhis or her last membership in such system began, served as a member of\nthe armed forces of the United States during the period beginning on the\ntwenty-seventh of June, nineteen hundred fifty and ending on the\nthirty-first day of January, nineteen hundred fifty-five, and (i) was\nhonorably discharged or released under honorable circumstances from such\nservice, or (ii) has a qualifying condition, as defined in section one\nof the veterans' services law, and has received a discharge other than\nbad conduct or dishonorable from such service, or (iii) is a discharged\nLGBT veteran, as defined in section one of the veterans' services law,\nand has received a discharge other than bad conduct or dishonorable from\nsuch service.\n (b) Notwithstanding any provision of subdivision four of this section\nto the contrary, any New York city veteran of World War II or New York\ncity veteran of the Korean conflict who did not, within the applicable\nperiod of time prescribed by subdivision four of this section, comply\nwith the requirements of such subdivision for obtaining service credit\nin the New York city employees' retirement system for the period of his\nmilitary duty, may, by a written application duly executed and filed\nwith the board of estimate of the city of New York, prior to July first,\nnineteen hundred sixty-nine, elect to purchase such service credit. If\nsuch veteran shall pay to such retirement system, prior to July first,\nnineteen hundred sixty-nine, the amount which he would have contributed\nthereto if he had been continuously employed during such period of\nmilitary duty, he shall have in such retirement system the service\ncredit which he could have obtained for such period of military duty if\nhe had complied with the requirements of such subdivision four within\nthe period of time therein prescribed.\n 5. Rights upon restoration to position. A public employee restored to\nhis position after the termination of his military duty or after the\ntermination of his substitute appointment shall thereafter be entitled\nto the rate of compensation he would have received had he remained in\nhis position continuously during such period of military duty or during\nsuch period of service as a substitute and shall be deemed to have\nrendered satisfactory and efficient service in such position during the\nperiod of his leave of absence and shall not be subjected directly or\nindirectly to any loss of time service, increment, or any other right or\nprivilege, or be prejudiced in any way with reference to promotion,\ntransfer, reinstatement or continuance in office. If a public employee,\nby reason of injuries sustained or disease contracted while on military\nduty, as hereinbefore defined, is incapable of efficiently performing\nthe duties of his position after the termination of his military duty,\nhe may, with the approval of the civil service commission having\njurisdiction of such position, be transferred to any vacant position in\nthe same jurisdictional classification and in the same governmental unit\nfor which he has applied in writing and for which he has been found\nqualified, after such tests as the commission may deem appropriate,\nprovided the rate of compensation for such position is not greater than\nthe rate of compensation for the position to which such public employee\nwas restored. If a promotion examination is held while a public employee\nentitled to participate therein is on military duty, such public\nemployee shall be given a comparable examination, provided he makes\nrequest therefor within sixty days after restoration to his position. If\nhe passes such examination his name shall be placed upon a special\neligible list provided that his name would have been reached for\ncertification between the date when he entered upon such military duty\nand the date that he was officially notified that he had passed such\nexamination. Such special eligible list shall remain in existence for a\nperiod of two years from the date that the name of such person is placed\nthereon and such special eligible list shall be certified before\ncertification shall be made from any subsequent or eligible list,\nwhether open competitive, promotion or preferred which has been\nestablished for the same position, or from the original eligible list\nfor such position. A public employee thus appointed after passing a\ncomparable examination as herein provided, shall, for the purpose of\ncomputing seniority credit and training and experience credit upon\npromotion and seniority in the event of suspension or demotion, be\ndeemed to have been appointed on the earliest date upon which any\neligible, who was lower on the regular promotion eligible list, was\nappointed.\n 6. Appointment while on military duty. Any appointing officer or body\nmay, in his or its discretion, fill a vacancy by the appointment or\npromotion of a public employee or any other person legally eligible for\nsuch appointment or promotion, notwithstanding the absence of such\nperson or employee in military duty but such appointment or promotion\nshall not serve to increase in any degree any civil compensation which\nhe may have been receiving pursuant to section six of chapter six\nhundred eight of the laws of nineteen hundred fifty-two. Such employee,\nupon the termination of his military duty shall have the same rights,\nprivileges and obligations as if he had served continuously in such\nposition from the date of his appointment thereto.\n 7. Status of existing lists. Any person whose name is on any eligible\nlist shall, while in military duty, retain his rights and status on such\nlist. If the name of any such person is reached for certification during\nhis military duty, it shall be placed on a special eligible list in the\norder of his original standing, provided he makes request therefor\nfollowing termination of his military duty and during the period of his\neligibility on such list. Such list shall be certified before\ncertification shall be made from a subsequent open competitive or\npromotion eligible list for the same position or from the original\neligible list for such position. Such names shall remain on such special\neligible list for a period of two years after the termination of such\nmilitary duty. Any such person thus appointed shall, for the purpose of\ncomputing seniority credit and training and experience credit for\npromotion and date of membership in the retirement system and seniority\nin the event of suspension or demotion, be deemed to have been appointed\non the earliest date upon which any eligible, who was the lower on such\noriginal eligible list, was appointed, provided, however that service\ncredit shall be computed from the actual date of appointment. The\nretirement system contributions of any such person who made any\ncontribution to the retirement system pursuant to article fourteen or\nfifteen of the retirement and social security law, and who was appointed\non or after July twenty-seventh, nineteen hundred seventy-six shall not\nbe refunded.\n 7-b. Status of applicants called for military duty before taking all\nparts of an examination. Any person who has passed one or more of\nseveral parts of an examination for a position for which competitive\nexaminations are required, and who has been prevented from taking or\ncompleting the remaining part or parts of the examination for such\nposition by reason of his service in military duty shall be afforded an\nopportunity to take a comparable examination as to such remaining part\nor parts, provided he makes request therefor during the period of ninety\ndays following termination of his military duty. If he passes such\nexamination his name shall be placed upon a special eligible list\nprovided that his name would have been reached for certification between\nthe date when he entered upon such military duty and the date that he\nwas officially notified that he had passed such examination. Such\nspecial eligible list shall remain in existence for a period of two\nyears from the date that the name of such person is placed thereon. Such\nspecial eligible list shall be certified before certification shall be\nmade from a subsequent eligible list whether open competitive, promotion\nor preferred for the same position or from the original eligible list\nfor such position. Any such person thus appointed shall, for the purpose\nof computing seniority credit and training and experience credit for\npromotion and seniority in the event of suspension or demotion, be\ndeemed to have been appointed on the earliest date upon which any\neligible was appointed who was lower on such original eligible list or\nlower in relative order of rating thereon than such person would have\nbeen had his name been entered thereon.\n 8. Service and efficiency ratings. A public employee who is absent on\nmilitary duty shall be credited with the average of the efficiency\nratings which he received for the three periods immediately prior to his\nabsence on military duty but such rating shall not be less than a\npassing grade for the period of such absence, nor shall it be less than\nthe rating which he received for the period immediately prior to his\nabsence on military duty. In computing seniority and service\nrequirements for promotion eligibility, such period of military duty\nshall be counted as service in the position held by such employee.\n 9. Probationary service. If a public employee or other person enters\nmilitary duty before the expiration of the probationary period in any\nposition to which he may have theretofore been appointed, or to which he\nmay thereafter be appointed or promoted pursuant to subdivision six of\nthis section, the time he is absent on military duty shall be credited\nas satisfactory service during such probationary period.\n 9-a. Probationary service of teachers. Notwithstanding the provisions\nof subdivision five of this section and subdivision four of section two\nhundred forty-two of this chapter, in any case where a teacher, as\ndefined in section thirty-one hundred one of the education law, enters\nmilitary duty before the expiration of the probationary period to which\nhe may have theretofore been appointed, the time he is absent on\nmilitary duty shall be credited as satisfactory service during such\nprobationary period. If the end of such probationary service occurs\nwhile the teacher is on military duty or within one year following the\ntermination of such military duty, the period of such probationary\nservice may be extended by the local board of education for a period of\nnot to exceed one year from the date of termination of such military\nduty, but in no event for a period of probationary service in the actual\nperformance of teaching services, exclusive of such military service,\nbeyond that required by the school district at the time of his entry\ninto military service.\n 10. Physical examination. If a physical examination is required for\nemployment in or promotion to any position in the public service, the\nphysical disability of a candidate incurred by reason of injury\nsustained or disease contracted while in military duty, as hereinbefore\ndefined, or during the world war shall not be deemed to disqualify him\nfor such position unless the disability is of such a nature as to\nprevent him from efficiently performing the duties of such position.\n 10-a. Age requirements. If maximum age requirements are established by\nlaw, or rule or by action of a civil commission for examination for, or\nfor appointment or promotion to, any position in the public service, the\nperiod of military duty as hereinbefore defined, the period of service\nafter June twenty-seventh, nineteen hundred fifty, voluntarily entered\nupon between January first, nineteen hundred forty-seven, and June\ntwenty-seventh, nineteen hundred fifty, if such service otherwise falls\nwithin the definition of military duty, and the period of terminal leave\ngranted by the military authorities of a candidate or eligible shall not\nbe included in computing the age of such candidate or eligible for the\npurposes of such examination or appointment or promotion; provided,\nhowever, that neither shall the total time deducted hereunder in\ncomputing the age of a candidate or eligible exceed seven years for any\nposition including, but not limited to, in cities with a population of\none million or more.\n 10-b. If a public employer consolidates, abolishes, displaces, or\ndemotes a position, in accordance with section eighty or eighty-five of\nthe civil service law, which is occupied by a public employee currently\non active duty with the armed forces of the United States, as pursuant\nto title ten, fourteen or thirty-two of the United States code, such\nemployer shall comply with subdivisions eleven and twelve of this\nsection and, upon the termination of the public employee's active duty,\nas defined in title ten, fourteen or thirty-two of the United States\ncode, such public employer shall provide full re-employment rights\nwarranted to such employee under the Federal Uniformed Services\nEmployment and Reemployment Rights Act of 1994, provided, however, the\nright of re-employment under this subdivision does not entitle such\nemployee to displacement rights over any person with greater seniority.\nSuch public employer shall not abolish any position or positions solely\nbased upon the fact that the position or positions are currently filled\nby an individual or individuals engaged in military duty.\n 11. Preferred lists. If the position occupied by a public employee is\nabolished prior to the termination of his military duty his name shall\nbe placed forthwith upon a preferred list, as herein provided. Public\nemployees in the competitive class of the civil service shall have their\nnames placed upon a preferred eligible list, pursuant to the provisions\nof section eighty-one of the civil service law and public employees\nsubject to sections twenty-five hundred ten, twenty-five hundred\neighty-five and twenty-five hundred eighty-eight of the education law\nshall have their names placed upon a preferred list as provided in such\nsection.\n 12. Military re-employment lists. If the position occupied by a public\nemployee, who is not included in the provisions of subdivision eleven of\nthis section, has been abolished or is no longer in existence upon the\ntermination of his military duty such employee, upon filing a written\nrequest within ninety days after the termination of his military duty,\nshall have his name placed forthwith, upon a military re-employment\nlist, as herein provided, for the position last held by him or any\nsimilar position. The military re-employment list for public employees\nin the classified civil service, other than in the competitive class,\nshall be established by the civil service commission having jurisdiction\nof such position and such list for public employees who are not in the\nclassified civil service shall be established by the officer who makes\npayment of the wages or salary for such position. Separate lists shall\nbe established for positions in the non-competitive and the labor class\nof the classified civil service. After the establishment of a military\nre-employment list, it shall be made available to appointing officers\nand bodies and no position shall be filled until the appointing officer\nor body certifies to the civil service commission or to the disbursing\nofficer, as the case may be, that no person on such military\nre-employment list, who formerly held the same or a similar position, is\nqualified to fill and willing to accept appointment to such vacancy. The\ncivil service commission or the disbursing officer, as the case may be,\nshall refuse to approve the payroll for such position until such\ncertificate is filed. Appointments from a military re-employment list\nmay be made without regard to the order of standing on said list.\nEligibility for appointment from such military re-employment list shall\nnot continue for a period longer than four years from the date of\ntermination of military duty. Refusal to accept an offer of appointment\nto a position similar to the last held by such public employee shall\ncause the removal of his name from such list. Upon a failure or refusal\nto comply with the provisions of subdivisions eleven and twelve of this\nsection, the supreme court is empowered, upon the filing of a petition\nor other appropriate pleading, by the public employee entitled to the\nbenefits of such provisions, to specifically require compliance\ntherewith, and may, as an incident thereto, compensate such employee for\nany loss of wages suffered by reason of such unlawful action. The court\nshall order a speedy hearing in any such case and shall advance it on\nthe calendar. Nothing in this subdivision shall be construed to apply to\npositions in the exempt class of the classified civil service.\n 13. Temporary positions. The provisions of subdivisions three and five\nof this section shall not be applicable to a public employee holding a\ntemporary position, but such employee shall, nevertheless, be placed\nupon a military re-employment list, as provided in subdivision twelve of\nthis section and, so far as practicable, shall be restored to a position\nsimilar to that held at the time such employee entered military duty.\n 14. Public employees appointed for a definite term. A public employee\nappointed for a definite term shall be deemed to have a leave of absence\nuntil the end of his term of office and until his successor has been\nappointed, but not thereafter, for the purpose of determining his rights\nunder this section.\n 15. Elective officers. The provisions of subdivision four of this\nsection shall be applicable to an elective officer and he shall be\ndeemed to continue in his office until his successor has been elected,\nbut not thereafter, for the purpose of determining his rights under such\nsubdivision. No other provisions of this section shall be applicable to\nelective officers.\n 16. Salaries. Nothing in this section shall be construed to give any\npublic employee any claim for salary or compensation during his absence\non military duty.\n 17. Certificates as to service. A certificate signed by the commander,\ntotal army personnel center as to persons in the army or in any branch\nof the United States service while serving pursuant to law with the army\nof the United States, signed by the commander, naval military personnel\nas to persons in the United States service while serving pursuant to law\nwith the United States navy, and signed by the commandant, United States\nmarine corps, as to persons in the marine corps, or in any other branch\nof the United States service while serving pursuant to law with the\nmarine corps, signed by the chief, air force military personnel center\nas to persons in the United States service while serving pursuant to law\nwith the United States air force or with the United States space force,\nor signed by an officer designated by any of them, respectively, for the\npurpose, shall when produced be prima facie evidence as to any of the\nfollowing facts stated in such certificate: That a person named has not\nbeen, or is, or has been in military service; the time when and the\nplace where such person entered military service, such person's\nresidence at that time, and the rank, branch, and unit of such service\nthat such person entered, the dates within which such person was in\nmilitary service, the monthly pay received by such person at the date of\nissuing the certificate, the time when and the place where such person\ndied in or was discharged from such service. It is the duty of the\nforegoing officers to furnish such certificate on application, and any\nsuch certificate when purporting to be signed by any one of such\nofficers, or by any person purporting upon the face of the certificate\nto have been so authorized, shall be prima facie evidence of its\ncontents and of the authority of the signer to issue the same.\n 18. Rights and privileges of public employees and other persons while\nengaged in essential war work. Every public employee, or other person to\nwhom this section is applicable, who has been or may be discharged or\nrelieved from military duty on condition that he engage in work\nessential to the prosecution of the war, shall be entitled, while\nengaged in such work, to all the rights and privileges to which he would\nhave been entitled, under the provisions of this section, had he\ncontinued to perform military duty. A certificate of the war manpower\ncommission, or of the United States employment service, or of the proper\nauthorities in the armed forces of the United States, or of any other\nauthorized federal agency, that any such public employee, or other\nperson to whom this section is applicable, is or has been, for the\nperiod stated in such certificate, engaged in such work, shall be\nrequired in order to confer upon such employee or person the rights and\nprivileges accorded by this subdivision, and such certificate shall be\npresumptive evidence of such facts.\n 19. Leaves of absence and re-employment of certain teachers and school\nsupervisors. A member of the teaching or supervising staff in a school\ndistrict other than a school district employing a superintendent of\nschools shall be entitled to absent himself from his position while\nengaged in the performance of military duty and shall be deemed to have\na leave of absence for the duration of such military duty. Such person\nshall be reinstated to his position provided he makes application for\nsuch reinstatement within ninety days after the termination of his\nmilitary duty, notwithstanding that his contract with the school\ndistrict shall have expired.\n 20. Payment of pension contributions by city of New York. A. As used\nin this subdivision:\n (1) the term "New York city member" shall mean any public employee (a)\nwho was granted a leave of absence for the period of his military duty\npursuant to the provisions of subdivision two of this section and who\nwas on April eleventh, nineteen hundred forty-seven, or shall become\nprior to January first, nineteen hundred fifty-two, a member of any\npension or retirement system to which the city of New York, the\nTriborough bridge and tunnel authority, or the New York city housing\nauthority is required by law to make contributions on account of such\nemployee, or (b) who was on April eleventh, nineteen hundred\nforty-seven, or shall thereafter become a member of any such system and\nwho is or shall be entitled to seniority credit and training and\nexperience credit under the provisions of subdivision seven, seven-a or\nseven-b of this section by reason of appointment from an eligible list\nor special eligible list, but such term shall not include any public\nemployee whose rights as to civil compensation are or were governed by\nsection six of chapter six hundred eight of the laws of nineteen hundred\nfifty-two;\n (2) the term "system" shall mean any pension or retirement system\nreferred to in subsection (1) of paragraph A of this subdivision.\n B. Except as otherwise provided in paragraphs C, D and E of this\nsubdivision, any New York city member shall have as to any period of\nmilitary duty performed by him the same rights and shall be entitled to\nthe same benefits in respect to his membership in any system as he would\nhave had if he had been present and continuously engaged in the\nperformance of the duties\n (1) of the position from which he was granted a leave of absence\npursuant to the provisions of subdivision two of this section, if he is\nnot entitled to seniority and training and experience credit as provided\nby subdivision seven, seven-a or seven-b of this section, and was not\nappointed to a position while on military duty as provided by\nsubdivision six of this section, or\n (2) if he was granted such leave and received an appointment as\nprovided by subdivision six of this section, of the position from which\nhe received such leave of absence, up to the date of such appointment,\nand thereafter as if he had been present and continuously engaged in the\nperformance of the duties of such position to which he was appointed, or\n (3) if granted such leave of absence and entitled to credit as\nprovided by subdivision seven, seven-a or seven-b of this section, of\nthe position from which he was granted such leave of absence, up to the\ndate upon which he is deemed to have been appointed as provided in such\nsubdivision seven, seven-a or seven-b and thereafter as if he had been\npresent and continuously engaged in the performance of the duties of the\nposition with respect to which the date on which he is deemed to have\nbeen appointed is specified by such subdivision seven, seven-a or\nseven-b, or\n (4) if he did not receive such leave, but is entitled to credit under\nsuch subdivision seven, seven-a or seven-b, of the position to which he\nis deemed to have been appointed on the date specified therein, and as\nif he had actually been appointed and had entered upon the performance\nof the duties of such position upon such date.\n C. No New York city member shall be entitled to any of the rights,\nbenefits or credit conferred by this subdivision with respect to\n (1) any period of military duty, or portion thereof, during which the\nmilitary base pay of such member or his compensation for military duty\nperformed other than as a member of the armed forces, exceeded the civil\ncompensation of the position or positions with respect to which his\nrights and benefits for the corresponding period or portion thereof are\ndetermined by the provisions of paragraph B of this subdivision, or\n (2) any period of military duty or portion thereof prior to the date\nupon which any member, who was not granted a leave of absence pursuant\nto the provisions of subdivision two of this section, is deemed to have\nbeen appointed by virtue of the provisions of subdivision seven, seven-a\nor seven-b of this section.\n As to any period of military duty or portion thereof referred to in\nsubsection (1) of this paragraph, the rights of any such member with\nrespect to membership in any system shall be governed by the provisions\nof subdivision four of this section.\n D. Time during which any New York city member was absent on military\nduty shall not constitute an interruption of continuous employment and,\nexcept as provided in paragraph C of this subdivision, such time shall\nbe counted and included in determining the length of total service.\n E. Upon the death or retirement of a New York city member, but not\notherwise, the city of New York, the Triborough bridge and tunnel\nauthority, or the New York city housing authority (whichever shall have\nfirst employed such member after the termination of his military duty)\nshall pay into the appropriate fund of the system in which such member\nheld membership at the time of his death or retirement, the amount of\nall contributions which such member would have been required to make if,\nduring the period of his military duty, he had been present and had\ncontinuously performed the duties of the position or positions with\nrespect to which his rights and benefits during the corresponding period\nor portion thereof are determined by the provisions of paragraph B of\nthis subdivision; provided that such city or authority shall not pay\ninto any such fund any contributions payable or accruing for any period\nof military duty or portion thereof, referred to in paragraph C of this\nsubdivision. Each such member shall be credited with such contributions\npaid in his behalf by such city or authority for all pension or\nretirement purposes; provided that (1) any portion of any retirement\nallowance, pension, death benefit or other benefit or right derived from\nsuch contributions paid in behalf of such member by such city or\nauthority, shall be such amount as the payment required by this\nparagraph, made at the time herein specified, shall provide, (2) such\nmember shall not under any circumstances have the right to withdraw the\namount of such contributions, or any interest thereon, as a part of his\naccumulated deductions or otherwise, and (3) such contributions shall be\nexcluded in determining the amount of any loan which any such member\nshall be entitled to make.\n F. In any case where any New York city member has heretofore paid or\nshall hereafter pay to any system any contributions which the city of\nNew York, the Triborough bridge and tunnel authority, or the New York\ncity housing authority is required to pay to such system by the\nprovisions of this subdivision, such contributions shall be regarded as\nexcess contributions which are (1) creditable in lieu of regular\ncontributions (a) upon the return of such member to his position after\nthe termination of his military duty, or (b) upon his becoming a member\nof such system, if he did not become a member thereof until after the\ntermination of such duty, or (2) payable in addition to other benefits\nupon separation meanwhile with benefit.\n