§ 19-11-111 — Right of reinstatement to former employment

(a) Any person who is absent from a position of employment
by reason of service in the uniformed services shall be entitled
to the reemployment rights and benefits and other employment
benefits of this article within ten (10) days of application for
reemployment if all of the following conditions are met:
(i) The person or the authorized officer of the
uniformed service in which the service is performed has given
advance written or verbal notice of service to the person's
employer;
(ii) 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 does not
exceed five (5) years;
(iii) Except as provided in subsection (f) of this
section the person reports to, or submits an application for
reemployment to, the employer in accordance with subsection (e)
of this section;
(iv) If the person has been discharged from the
uniformed services, the discharge was an honorable discharge or
a discharge under honorable conditions.
(b) Notice is not required under subsection (a) of this
section if the giving of the notice is precluded by military
necessity or, under all of the relevant circumstances, the
giving of the notice is otherwise impossible or unreasonable. A
determination of military necessity for the purposes of this
subsection shall be made pursuant to regulations prescribed by
the uniformed services 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 uniformed services if the person's cumulative period of
service in the uniformed services with respect to the employer
relationship for which a person seeks reemployment does not
exceed five (5) years, except that the period of service shall
not include any service:
(i) That is required, beyond five (5) years, to
complete an initial period of obligated service;
(ii) During which the person was unable to obtain
orders releasing the person from a period of service in the
uniformed services before the expiration of the five (5) year
period and the inability was through no fault of the person;
(iii) Performed to fulfill additional training
requirements determined to be necessary for professional
development or for completion of skill training or retraining;
or
(iv) Performed by a member of a uniformed service who
has been:
(A) Ordered to or retained on active duty in
time of war or national or state emergency;
(B) Ordered to or retained on active duty other
than for training under any provision of law during a war or
during a national emergency declared by the president or the
congress or emergency declared by the governor; or
(C) Ordered to active duty in support of a
critical mission or requirement of the uniformed services.
(d) An employer is not required to reemploy a person under
this section if the employer demonstrates that:
(i) The employer's circumstances have so changed as
to make reemployment impossible or unreasonable;
(ii) The reemployment would impose an undue hardship
on the employer; and
(iii) The employment from which the person leaves to
serve in the uniformed services is for a brief, nonrecurrent
period and there is no reasonable expectation that such
employment will continue indefinitely or for a significant
period.
(e) Subject to subsection (f) of this section, a person
referred to in subsection (a) of this section shall, upon the
completion of a period of service in the uniformed services,
notify the employer referred to in subsection (a) of this
section of the person's intent to return to a position of
employment with the employer as follows:
(i) In the case of a person whose period of service
in the uniformed services was less than thirty-one (31) days, by
reporting to the employer in the following manner:
(A) 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;
(B) As soon as possible after the expiration of
the eight (8) hour period referred to in subparagraph (A) of
this paragraph, if reporting within that period is impossible or
unreasonable through no fault of the person.
(ii) In the case of 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 uniformed services, by reporting in the
manner and time referred to in paragraph (i) of this subsection;
(iii) In the case of a person whose period of service
in the uniformed services 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 such application within such period is
impossible or unreasonable through no fault of the person, the
next first full calendar day when submission of such application
becomes possible; or
(iv) In the case of a person whose period of service
in the uniformed services was for more than one hundred eighty-
one (181) days, by submitting an application for reemployment
with the employer not later than ninety (90) days after the
completion of the period of service.
(f) A person who is hospitalized for, or convalescing
from, an illness or injury incurred in, or aggravated during,
the performance of service in the uniformed service, 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, in the case of a person described in paragraphs (e)(i)
and (ii) of this section or submit an application for
reemployment with his employer, in the case of a person
described in paragraphs (e)(iii) and (iv) of this section.
Except as provided in paragraph (e)(ii) of this section, such
period of recovery may not exceed two (2) years. The two (2)
years shall be extended by the minimum time required to
accommodate the circumstances beyond such person's control which
makes reporting within the period specified in paragraph (e)(i)
of this section impossible or unreasonable. A person who fails
to report or apply for employment or reemployment within the
appropriate period specified in subsections (e) and (f) of this
section shall not automatically forfeit his 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.
(g) A person who submits an application for reemployment
in accordance with paragraph (e)(iii) or (iv) of this section
shall provide, upon request by the person's employer, to the
person's employer documentation to establish the following:
(i) The person's application is timely;
(ii) The person has not exceeded the service
limitations set forth in paragraph (a)(ii) of this section,
except as permitted under subsection (c) of this section; and
(iii) If the person has been discharged from the
uniformed service, the discharge was an honorable discharge or a
discharge under honorable conditions.
(h) Documentation of any matter referred to in subsection
(g) of this section that satisfies regulations prescribed by the
adjutant general shall satisfy the documentation requirements in
subsection (g) of this section. Failure to provide documentation
that satisfies regulations prescribed by the adjutant general
shall not be a basis for denying reemployment in accordance with
the provisions of this section if the failure occurs because the
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 that the person
does not meet one (1) or more of the requirements referred to in
paragraph (g)(i), (ii) or (iii) of this section, the employer of
the person may terminate the employment of the person and the
provision of any rights or benefits afforded the person under
this section. 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 this subsection and subsection (g)
of this section before beginning to treat the person as not
having incurred a break in service for pension purposes. An
employer may not delay or attempt to defeat a reemployment
obligation by demanding documentation that does not then exist
or is not then readily available.
(j) The right of a person to reemployment under this
section shall not entitle such person to retention, preference
or displacement rights over any person with a superior claim
under the provisions of title 5, United States Code, relating to
veterans and other preference eligibility.
(k) In any determination of a person's entitlement to
protection under this section, the timing, frequency and
duration of the person's training or service, or the nature of
such training or service, including voluntary service, in the
uniformed services, shall not be a basis for denying protection
under this section if the service does not exceed the
limitations set forth in subsection (c) of this section the
notice requirements established in paragraph (a)(i) of this
subsection and the notification requirements established in
subsection (e) of this section are met.
(m) Any employee, who applies for reemployment in
accordance with the provisions of this law, shall be entitled to
complete any training program that was applicable to his former
position of employment during his period of service in the
uniformed services.
(n) Any employee who is restored to or employed in a
position in accordance with the provisions of this section shall
not be discharged from such position without cause within one
(1) year after such restoration or reemployment.
(o) Notwithstanding any provision of law to the contrary,
an employee shall be reinstated to his former position as a
teacher immediately upon application and shall be entitled to
receive that compensation which he would have received if he
would have been employed on a nine (9) month basis and had
prorated his salary over twelve (12) months. The employee shall
be reinstated prior to the end of the twelve (12) months.
(p) A person who is reemployed under this section is
entitled to the seniority and other rights and benefits
determined by seniority that the person had on the date of the
commencement of service in the uniformed services plus the
additional seniority, rights and benefits that such person would
have attained if the person had remained continuously employed.