Washington state policy on paying for military leave

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Military Leave for Public Employees

Under Washington law, every state or local government official or employee is entitled to a military leave of absence for a period not to exceed 21 work days during each year, from October 1 through September 30, so that the employee may report for required military duty, training, or drills, including those in the national guard and the reserves (RCW 38.40.060; WAC 357-31-360).

Military leave is paid and is only charged for those workdays that an employee is scheduled to work. However, if an employee is scheduled to work a shift that extends into a second day, the employee is only charged military leave for the first day of the shift.

During military leave, the employee continues to be paid their regular salary. It does not matter whether the person was ordered to undertake military service or training or whether the employee is serving in a volunteer capacity (RCW 38.40.060).

Elected Officials

RCW 73.16.041 provides that if an elected official is a member of a legislative body and is called to active service or training, the legislative body must grant an extended leave of absence for the elected official.

The leave of absence that is granted, however, may not exceed the length of the elected official's remaining term of office. In addition, the legislative body may appoint a person to serve in the official’s position during the official’s absence.

Reemployment Rights under USERRA

Under the terms of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301-4335, a person who leaves a civilian job to enter active duty is entitled to:

• A return to their civilian job after release from active duty, and
• Health insurance coverage for up to 24 months while on leave or to be reinstated in a health care plan without waiting periods or exclusions.

However, there are five basic eligibility requirements under federal law (20 CFR Part 1002):

1. The person must have held a civilian job at the time they entered active duty. While those who held a temporary or part-time civilian job are eligible for reemployment rights, those rights are not granted to those whose positions were for a brief, non-recurrent period and there is no reasonable expectation that the employment would have continued indefinitely or for a significant period.
2. The employee must have left the civilian job for the purpose of going into active duty and must have given notice to the employer to that effect unless notice was precluded by military necessity or otherwise was impossible or unreasonable.
3. The person must have been released from service under honorable conditions and must furnish proof of that release upon request by the employer.
4. The employee must either report to work or apply in writing within 90 days of separation or be released from training or service (lesser periods apply when the period of service is 180 days or less).
5. The cumulative period of military service with a single employer must not exceed five years.

Reemployment rights are available whether the person is in combat, active duty for training, or inactive duty.

For a full list of USERRA regulations issued from the U.S. Department of Labor (DOL), see 20 C.F.R. Part 1002.

Notice/Poster Display Requirement for Employers

Federal law requires employers to notify employees of their reemployment and other rights under USERRA. This requirement may be met by displaying the text of the USERRA notice from the DOL Veteran’s Employment and Training Service (VETS).

Leave for Military Spouses During Deployment

The Washington State Military Family Leave Act (MFLA), chapter 49.77 RCW, provides up to 15 days of unpaid leave (per deployment) to eligible employees whose military spouse has been notified of an impending call or order to active duty and before deployment or when the military spouse is on leave from deployment, see RCW 49.77.030(1).

To be eligible for MFLA, employees must

• Work an average of 20 or more hours per week, and
• Be a spouse of a member of the armed forces, National Guard, or reserves serving in military conflicts.

An employee seeking to use MFLA must notify their employer of the intent to use the leave within five business days of the military spouse receiving official notice of an impending call or order to active duty or of a leave from deployment, see RCW 49.77.030(5).

RCW 49.77.030(6) provides that, although the leave is unpaid, an employee may substitute accrued paid leave for the time off.

Leave for Military Family and/or Caregivers

Under the federal Family and Medical Leave Act (FMLA), 29 C.F.R. Part 825, eligible employees are entitled

• Up to 26 workweeks of unpaid leave during a 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin.
• Up to 12 workweeks of unpaid leave during a 12-month period for qualifying exigencies that arise when the eligible employee’s spouse, son, daughter, or parent is on covered duty or has been notified of an impending call or order to covered active duty. This type of leave may only be taken for “qualifying exigencies,” which are outlined in detail on the DOL's Fact Sheet #28M(c): Qualifying Exigency Leave under the Family and Medical Leave Act. (See 29 CFR 825.127 and .310).

For an employee to qualify for the FMLA military leave:

• The employer must have 50 or more employees during 20 or more calendar months working within 75 miles of the employer’s worksite.
• The employee must have worked at least 1,250 hours in the past 12 months (work hours need to be consecutive).

For further information on the military leave provisions under the FMLA, see the DOL's Fact Sheet #28M: Using FMLA Leave Because of a Family Member’s Military Service.

Examples of Local Policies

State and federal law set out the basic requirements, but some local jurisdictions have adopted their own recitations of the law or have provided other forms of relief for members of the military called into military service and their families.

• Chelan County Municipal Code Sec. 1.20.840 — Provides that employees returning from military active duty will be treated as though they were continuously employed for purposes of determining benefits based on length of service.
• Edmonds Municipal Code Ch. 2.36 — Provides for extended benefits beyond the required 21 days of paid military leave by establishing continuation of paid leave for 60 days for a total amount that is the difference between the employee's regular salary and the military service compensation paid. It also offers health benefit payments by the employer for 90 days as long as the employee receives eligible compensation salary.
• Vancouver Employment Policies Sec. 210-A (2022) — Provides that the city will continue health benefit premium payments for 29 consecutive days to eligible employees on military leave. After the 29 days, the employee may self-pay premiums for up to 24 months.

Recommended Resources

• MRSC: Sick Leave and Family/Medical Leave
• U.S. Department of Labor
  • USERRA Advisor — Includes an interactive tool that offers detailed legal guidance to employers and employees on USERRA.
  • Veteran's Employment and Training Service (VETS) — Provides access to all USERRA information offered by VETS.