ST22 Maryland (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 Maryland
By CAPT Samuel F. Wright, JAGC, USN (Ret.)
Maryland law provides for up to 15 days of paid military leave "for military training or active military duty in a Reserve unit of the armed forces or in the organized militia" (Maryland State Personnel and Pensions Code, section 9-1104(3)). This entitlement only applies to employees of the State of Maryland-counties, municipalities, and other political subdivisions are free to confer or to decline to confer paid military leave, at local option.
It is unclear how the 15 day entitlement is computed. Do all days count, or only regular workdays? For example, Reservist Joe Smith performs 12 days of annual training with his Reserve unit, from Monday, Oct. 1, through Friday, Oct. 12. Mr. Smith does not normally work weekends in his civilian job at the Maryland Department of Taxation. Do Saturday (Oct. 6) and Sunday (Oct. 7) count in exhausting Mr. Smith's entitlement to 15 days of paid military leave?
Maryland law also provides for differential pay for state employees who are called to lengthy active duty periods, as follows:
"(a) Applicability. -This section applies to all employees, except temporary employees, of all units in the executive, judicial, and legislative branches of state government, including any unit with an independent personnel system.
"(b) Requirements. - Military administrative leave may be provided to an employee subject to this section who:
"(1) is on active military duty on July 1, 2003; or
"(2) is activated for military duty on or after July 1, 2003.
"(c) Compensation. -
(1) An employee who is eligible to receive military administrative leave under this section is entitled to leave in an amount sufficient to compensate the employee, during each pay period for which the employee is eligible to receive military administrative leave under this section, for the difference between the employee's active duty base salary paid by the federal government and the employee's State base salary or direct wages.
"(2) Compensation provided under this subsection may not exceed an employee's State base salary or direct wages.
"(d) Election. - An employee eligible to receive military administrative leave under this section who is activated for military duty on or after July 1, 2003, shall elect to use either military administrative leave or paid leave as provided in section 9-1104(3) of this subtitle." (Maryland State Personnel and Pensions Code, section 9-1107.)
Maryland law also provides for state retirement credit for military service that interrupts the individual's career as a state government employee. That law contains a limitation that, under some circumstances, violates the Uniformed Services Employment and Reemployment Rights Act (USERRA). "For an absence for military service on or after Jan. 1, 1946, service [state pension] credit for the military service may not exceed five years" (Maryland State Personnel and Pensions Code, section 38-103(d)(2)).
Under section 4318 of USERRA (38 U.S.C. 4318), an employee who leaves civilian employment for voluntary or involuntary service in the uniformed services is entitled to civilian pension credit for the time that the individual was away from work for service, provided the employee meets the USERRA eligibility criteria. USERRA applies to state and local governments, as well as private employers and the federal government. Section 4302(b) of USERRA [38 U.S.C. 4302(b)] provides that USERRA overrides a state law that purports to limit USERRA rights. Federal law trumps conflicting state law. See Article VI, Clause 2 of the United States Constitution (commonly called the "Supremacy Clause") and Gibbons v. Ogden, 22 U.S. 1 (1824).
Section 4312(c) of USERRA [38 U.S.C. 4312(c)] provides for a five-year limit on the duration of the individual's period or periods of uniformed service, relating to that employer relationship, but section 4312(c) also provides 8 statutory exemptions from the five-year limit. As I explain in Law Review 201 (available at www.roa.org), all involuntary service and some voluntary service are exempted from the computation of USERRA's five-year limit. Thus, under some circumstances an individual is entitled to more than five years of state pension credit for military service time, despite the provisions of section 38-103(d)(2) of the Maryland State Personnel and Pensions Code.
Let us take the hypothetical but entirely realistic Mary Jones. She works for the State of Maryland for her entire 35-year career, from September 2000 to September 2035. After the terrorist attacks of Sept. 11, 2001, Ms. Jones enlisted in the Maryland Army National Guard, and she remained in the Guard for a 25-year career, until she retired in October 2026. Ms. Jones was called to active duty for two years, involuntarily, from September 2003 to September 2005. She returned to work in October 2005, and she later performed four years of voluntary active duty, from September 2011 to September 2015. She also performed annual training with her National Guard unit (usually about two weeks but on a few occasions substantially longer) every year until she retired from the National Guard, and she performed inactive duty training (usually but not always on weekends) every month. Her involuntary call to active duty is excluded from the computation of her five-year USERRA limit, and her various tours of Reserve training duty are also excluded. Her four-year voluntary tour of active duty counts toward her five-year limit, but she has not exceeded the limit. USERRA entitles Ms. Jones to state pension credit for the entire 35-year period of her state employment-none of these military service periods interrupt her continuous accumulation of state pension credit.