Military leave: calculating time
A recent decision of the South Carolina Supreme Court regarding paid military leave in the public sector may have a significant impact on municipal budgets effective immediately.
Federal law, 38 U.S.C. § 4301 et seq., prohibits all employers from discriminating against employees because of military service. Under federal law, employees are entitled to up to five years of unpaid leave for military service and training.
In addition to the protections provided by federal law, South Carolina law requires that public sector employers provide paid leave to employees for up to 15 “work days” leave per year. (The year runs October 1 – September 30.) State law also requires that in the event an employee is called to serve during an emergency, the employee is entitled to additional paid leave not to exceed thirty days.
On May 26, 2009, the South Carolina Supreme court ruled in Blackburn v. Daufuskie Island Fire District, (S.C. Sup. Ct. Opinion 26656) that the 30 additional days of paid leave an employee may take during an emergency must be calculated based on “work days,” not “calendar days.” The practical effect of this ruling is that employees will receive differing amounts of paid time off for military service, depending upon their work schedules. For example, an employee who typically works a five-day, eight-hours per day schedule receives the equivalent of three weeks’ pay (15 days) for military duty. If called to serve in an emergency, he receives an additional six weeks (30 days) for a total of nine weeks pay. An employee who works a schedule of 24-hours on duty, followed by 48-hours off duty (24/48) (e.g. most fire departments) receives six weeks of leave (15 shifts) for regular military service and an additional nineteen weeks leave (30 shifts) in the event of an emergency, for a total of twenty-five weeks pay.
This decision affects only entitlement to paid military leave. It does not affect the way public employers calculate accrual and use of vacation, sick, or holiday time.
Municipalities may ignore a footnote in the decision referring to a 2008 amendment granting up to an additional 30 days paid leave to a state employee serving on active duty in a combat zone. This amendment applies to state employees only, not to other public sector employees.
All officers and employees of this State or a political subdivision of this State who are either enlisted or commissioned members of the South Carolina National Guard, the United States Army Reserve, the United States Air Force Reserve, the United States Naval Reserve, the United States Marine Corps Reserve, or the United States Coast Guard Reserve are entitled to leaves of absence from their respective duties without loss of pay, time, or efficiency rating for one or more periods not exceeding an aggregate of fifteen regularly scheduled work days in any one year during which they may engage in training or any other duties ordered by the Governor, the Department of Defense, the Department of the Army, the Department of the Air Force, the Department of the Navy, the Department of the Treasury, or any other department or agency of the government of the United States having authority to issue lawful orders requiring military service. Saturdays, Sundays, and state holidays may not be included in the fifteen-day aggregate unless the particular Saturday, Sunday, or holiday to be included is a regularly scheduled work day for the officer or employee involved. In the event any such person is called upon to serve during an emergency he is entitled to such leave of absence for not exceeding thirty additional days.
As used in this section, ‘in any one year’ means either a calendar year or, in the case of members required to perform active duty for training or other duties within or on a fiscal year basis, the fiscal year of the National Guard or reserve component issuing the orders.
The provisions of this section must be construed liberally to encourage and allow full participation in all aspects of the National Guard and reserve programs of the armed forces of the United States and to allow state officers and employees who are enlisted or commissioned members of the National Guard or reserve components to excel in military and emergency preparedness and service by taking full advantage of all career-enhancing assignments and training opportunities.
S.C. Code Ann. § 8-7-90 (Supp. 2008) (emphasis added).[4]
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