Kentucky

ST19 Kentucky (December 2007; Updated August 2010 - no changes to law)
1.18: USERRA and Other Laws
2.0: Paid Leave

Military Leave for Public Employees in Kentucky

By CAPT Samuel F. Wright, JAGC, USN (Ret.)

Kentucky law has a provision for reemployment rights for employees of the state and its political subdivision and a separate provision for paid military leave.

The law providing for employees of the state and its political subdivisions who leave their jobs for voluntary or involuntary military service predates the application of federal reemployment rights laws to the states. As such, Kentucky’s law gives state employees a six-year window of military service through which the state allows for reemployment.

That portion of Kentucky’s statute follows:

“(1) Any public employee who leaves a position after June 16, 1966, voluntarily or involuntarily, in order to perform military duty, and who is relieved or discharged from such duty under conditions other than dishonorable, and who has not been absent from public employment due to military duty in time of war or national or state emergency for a period of time longer than the duration of the war or national or state emergency plus six months or in time of peace for a period of time not longer than six years, and makes application for reemployment within 90 days after he is relieved from military duty or from hospitalization or treatment continuing after discharge for a period of not more than one year:

“(a) If still physically qualified to perform the duties of his position, shall be restored to such position if it exists and is not held by a person with greater seniority, otherwise to a position of like seniority, status, and pay;

“(b) If not qualified to perform the duties of his position by reason of disability sustained during such service, the public employee shall be placed in another position, the duties of which he is qualified to perform and which will provide him like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances of his case.

(2) In the case of any person who is entitled to be restored to a position in accordance with KRS 61.371 to 61.379, if the personnel board finds that the department or agency with which such person was employed immediately prior to his military duty:

“(a) Is no longer in existence and its functions have not been transferred to any other agency; or

“(b) For any reason it is not feasible for such person to be restored to employment by the department or agency, the board shall determine whether or not there is a position in any other department or agency of the same public employer for which the person is qualified and which is either vacant or held by a person having a temporary appointment thereto. In any case in which the board determines that there is such a position, the person shall be restored to the position by the department or agency in which the position exists.” (Kentucky Revised Statutes, section 61.373.)

The federal reemployment statute has applied to the federal government and to private employers since 1940, but it did not apply to state and local governments until 1974. This 1966 state law was especially relevant at a time before the federal reemployment statute applied to state and local governments. But the law is still relevant. For one thing, this section’s limit on the duration of the period of service is six years. Under the federal law, the limit is generally five years, with certain exemptions. See Law Review 201.

Kentucky law provides as follows concerning paid military leave for employees of the state:

“All officers and employees of this state, or of any department or agency thereof who are members of the National Guard or of any Reserve Component of the Armed Forces of the United States, or of the Reserve Corps of the United States Public Health Service, shall be entitled to leave of absence from their respective duties, without loss of time, pay, regular leave, impairment of efficiency rating, or of any other rights or benefits to which they are entitled, while in the performance of duty or training in the service of this state or of the United States under competent orders as specified in this section. In any one federal fiscal year, officers or employees, while on military leave, shall be paid their salaries or compensations for a period or periods not exceeding 21 calendar days. Any unused military leave in a federal fiscal year shall be carried over to the next year. Any unused military leave shall expire two years after it has accrued.” (Kentucky Revised Statutes, section 61.394.)

This provision applies only to the state, not the political subdivisions of the state, but section 61.396 makes section 61.394 applicable to counties, municipalities, school districts, and other political subdivisions.

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