North Carolina

ST35 North Carolina (Updated May 2013)

1.18: USERRA and Other Laws
2.0: Paid Leave

Paid Military Leave for Public Employees in North Carolina

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

North Carolina law provides as follows concerning paid military leave for employees of the state and its political subdivisions:

"The Governor or the Governor's designee shall promulgate appropriate policy and regulations relating to leaves of absence for short periods of military training and for State or federal military duty or special emergency management service of all officers and employees of the State and its political subdivisions, including officers and employees of public educational facilities under the sponsorship of the State, without loss of pay, time or efficiency rating." (General Statutes of North Carolina, section 127A-116.)

Below is the pertinent section of the North Carolina Administrative Code (NCAC).  Although section 127A-116 gives the Governor the authority to promulgate policy for political subdivisions of the state (counties, cities, school districts, etc.) as well as the state government itself, this administrative regulation appears to apply only to the state itself.  It appears that the political subdivisions have discretion with respect to granting paid military leave for their employees.  Some subdivisions are more generous than others.

25 ncac 01e .0804 PERIODS OF ENTITLEMENT FOR ALL RESERVE COMPONENTS

(a) Military leave with pay for training shall be granted to members of the Uniformed Services who are full-time or part-time employees with a permanent, trainee, time-limited or probationary appointment for up to 120 working hours (prorated for part-time employees) during the Federal fiscal year beginning October 1 and ending on September 30, for

(1) active duty for training; and

(2) inactive duty training. If the drill is not scheduled on the employee's off-days, the employee may request that the work schedule be rearranged, or the employee may use any unused portion of the 120 hours leave with pay, vacation leave, or leave without pay.

(b) Military leave with pay shall be granted to members of the Civil Air Patrol as defined in Rule .0821 of this Section.

(c) An employee shall be granted necessary time off when the employee must undergo a required physical examination relating to membership in a reserve component without charge to leave.

(d) Military leave with pay shall be granted to members of the State Defense Militia as defined in Rule .0820 of this Section.

(e) The total active and inactive duty shall not exceed five years plus any additional service imposed by law.

History Note: Authority G.S. 126‑4(5);

Eff. February 1, 1976;

Amended Eff. October 1, 2004, April 1, 2003; August 1, 1995; October 1, 1992; June 1, 1983; June 1, 1981.

Volume 25, North Carolina Administrative Code, section 01E.0804.

Subsection (e) is poorly drafted and confusing.  Inactive duty training and active duty for training performed by National Guard and Reserve personnel do not count toward the five-year limit on the permissible cumulative duration on periods of uniformed service, relating to a specific employer relationship, under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Please see Law Review 201 at www.servicemembers-lawcenter.org for a definitive summary of what counts and what does not count with respect to USERRA’s five-year limit.

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