§ 44-4312 — Reemployment rights and benefits.

A. Subject to subsections B, C and D of this section and subject to Section 6 of this act, any person whose absence from a position of employment is necessitated by reason of service in the state military forces shall be entitled to the reemployment rights and benefits and other employment benefits of the Oklahoma Uniformed Services Employment and Reemployment Rights Act if: 1. The person, or an appropriate officer of the state military forces in which such service is performed, has given advance written or verbal notice of service to the person's employer; 2. The cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the Uniformed Services of the United States does not exceed five (5) years; and 3. Except as provided in subsection F of this section, the person reports to, or submits an application for reemployment to, his or her employer in accordance with the provisions of subsection E of this section. B. No notice is required under paragraph 1 of subsection A of this section if the giving of notice is precluded by military necessity or, under all of the relevant circumstances, the giving of notice is otherwise impossible or unreasonable. A determination of military necessity for the purposes of this subsection shall be made pursuant to the applicable regulations prescribed by the Secretary of Defense pursuant to 38 U.S.C., Section 4312 or pursuant to regulations prescribed by the Adjutant General and shall not be subject to judicial review. C. Subsection A of this section shall apply to a person who is absent from a position of employment by reason of service in the state military forces if his or her cumulative period of service in the state military forces, with respect to the employer relationship for which he or she seeks reemployment, does not exceed five (5) years, except that any such period of service shall not include any service: 1. That is required, beyond five (5) years, to complete an initial period of obligated service; 2. During which the person was unable to obtain orders releasing him or her from a period of service in the state military forces before the expiration of the five-year period and the inability was through no fault of the person; 3. Performed as required pursuant to 32 U.S.C., Section 502 or 503, or to fulfill additional training requirements determined and certified in writing by the Secretary concerned, to be necessary for professional development, or for completion of skill training or retraining; 4. Performed by a member of the state military forces who is: a. ordered to state active duty in support of a mission or requirement of the state military forces, b. ordered to or retained on Title 32 active duty under 32 U.S.C., Section 502(f), or c. ordered to or retained on state active duty or Title 32 active duty, other than for training, under any provision of state or federal law to execute the laws of the state, or suppress insurrections or repel invasions or for any state emergency declared by the Governor or the Oklahoma Legislature, as determined by the Adjutant General for state active duty or by the Secretary concerned for Title 32 active duty; or 5. Performed as active duty, as defined in 10 U.S.C., Section 101(d)(1). D. 1. An employer is not required to reemploy a person under the Oklahoma Uniformed Services Employment and Reemployment Rights Act if: a. the employer's circumstances have so changed as to make reemployment impossible or unreasonable, b. for a person entitled to reemployment under paragraph 3 or 4 of subsection A of Section 9 of this act or subparagraph b of paragraph 2 of subsection B of Section 9 of this act, the employment would impose an undue hardship on the employer, or c. the employment from which the person leaves to serve in the state military forces is for a brief, nonrecurrent period and there is no reasonable expectation that the employment will continue indefinitely or for a significant period. 2. In any proceeding involving an issue of whether: a. any reemployment referred to in paragraph 1 of this subsection is impossible or unreasonable because of a change in an employer's circumstances, b. any accommodation, training, or effort referred to in paragraph 3 or 4 of subsection A of Section 9 of this act or subparagraph b of paragraph 2 of subsection B of Section 9 of this act would impose an undue hardship on the employer, or c. the employment referred to in subparagraph c of paragraph 1 of this subsection is for a brief, nonrecurrent period and there is no reasonable expectation that the employment will continue indefinitely or for a significant period, the employer shall have the burden of proving the impossibility or unreasonableness, undue hardship, or the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period. E. 1. Subject to paragraph 2 of this subsection, a person referred to in subsection A of this section shall, upon the completion of a period of service in the state military forces, notify the employer referred to in such subsection of the person's intent to return to a position of employment with such employer as follows: a. for a person whose period of service in the state military forces was less than thirty-one (31) days, by reporting to the employer: (1) not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight (8) hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence, or (2) as soon as possible after the expiration of the eight-hour period referred to in division (1) of this subparagraph, if reporting within the period is impossible or unreasonable through no fault of the person, b. for a person who is absent from a position of employment for a period of any length for the purposes of an examination to determine the person's fitness to perform service in the state military forces, by reporting in the manner and time referred to in subparagraph a of paragraph 1 of this subsection, c. for a person whose period of service in the state military forces was for more than thirty (30) days but less than one hundred eighty-one (181) days, by submitting an application for reemployment with the employer not later than fourteen (14) days after the completion of the period of service or if submitting the application within the period is impossible or unreasonable through no fault of the person, the next first full calendar day when submission of the application becomes possible, or d. for a person whose period of service in the state military forces was for more than one hundred eighty (180) days, by submitting an application for reemployment with the employer not later than ninety (90) days after the completion of the period of service. 2. a. A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the state military forces shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person's employer, for a person described in subparagraph a or b of paragraph 1 of this subsection or submit an application for reemployment with such employer, for a person described in subparagraph c or d of paragraph 1 of this subsection. Except as provided in subparagraph b of this paragraph, the period of recovery shall not exceed two (2) years. b. The two-year period shall be extended by the minimum time required to accommodate the circumstances beyond the person's control which make reporting within the period specified in subparagraph a of this paragraph impossible or unreasonable. 3. A person who fails to report or apply for employment or reemployment within the appropriate period specified in this subsection shall not automatically forfeit his or her entitlement to the rights and benefits referred to in subsection A of this section but shall be subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work. F. 1. A person who submits an application for reemployment in accordance with subparagraph c or d of paragraph 1 of subsection E of this section or paragraph 2 of subsection E of this section shall provide to his or her employer, upon request of the employer, documentation to establish that: a. his or her application is timely, b. he or she has not exceeded the service limitations provided in paragraph 2 of subsection A of this section, except as permitted under subsection C of this section, and c. his or her entitlement to the benefits under this act has not been terminated pursuant to Section 6 of this act. 2. Documentation of any matter referred to in paragraph 1 of this subsection that satisfies regulations prescribed by the Commissioner of Labor shall satisfy the documentation requirements in such paragraph. 3. a. Except as provided in subparagraph b of this paragraph, the failure of a person to provide documentation that satisfies regulations prescribed pursuant to paragraph 2 of this subsection shall not be a basis for denying reemployment in accordance with the provisions of the Oklahoma Uniformed Services Employment and Reemployment Rights Act if the failure occurs because such documentation does not exist or is not readily available at the time of the request of the employer. If, after reemployment, documentation becomes available that establishes the person does not meet one or more of the requirements referred to in subparagraphs a, b and c of paragraph 1 of this subsection, the employer of such person may terminate the employment of the person and the provision of any rights or benefits afforded the person under the Oklahoma Uniformed Services Employment and Reemployment Rights Act. b. An employer who reemploys a person absent from a position of employment for more than ninety (90) days may require that the person provide the employer with the documentation referred to in subparagraph a of this paragraph before beginning to treat the person as not having incurred a break in service for pension purposes. 4. An employer shall not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not then readily available. G. The right of a person to reemployment pursuant to this section shall not entitle the person to retention, preference, or displacement rights over any person with a superior claim under the provisions of Title 5 of the United States Code relating to veterans and other preference eligibles. H. In any determination of a person's entitlement to protection under the Oklahoma Uniformed Services Employment and Reemployment Rights Act, the timing, frequency, and duration of his or her training or service, or the nature of the training or service, including voluntary service, in the state military forces shall not be a basis for denying protection of the Oklahoma Uniformed Services Employment and Reemployment Rights Act if the service does not exceed the limitations set forth in subsection C of this section and the notice requirements established in paragraph 1 of subsection A of this section and the notification requirements established in subsection E of this section are met.

Legislative History

Added by Laws 2021, c. 122, § 8, emerg. eff. April 21, 2021.