N.Y.
Military Law Section 243
Provisions applicable to public employees who are absent on military duty
1.
Definitions. As used in this section:(a)
The term “public employee” shall mean an officer or employee holding a position by appointment or employment in the state of New York or in the cities, counties, towns, villages or school districts thereof, or in any other political or civil division of the state or of a municipality, or in any public or special district, or in the service of any public authority, public benefit corporation, commission or board, or in any other branch of the public service.(b)
The term “military duty” shall mean military service in the military, naval, aviation or marine service of the United States subsequent to July first, nineteen hundred forty, or service under the selective training and service act of nineteen hundred forty, or the national guard and reserve officers mobilization act of nineteen hundred forty, or any other act of congress supplementary or amendatory thereto, or any similar act of congress hereafter enacted and irrespective of the fact that such service was entered upon following a voluntary enlistment therefor or was required under one of the foregoing acts of congress, or service with the United States public health service as a commissioned officer, or service with the American Red Cross while with the armed forces of the United States on foreign service, or service with the special services section of the armed forces of the United States on foreign service, or service in the merchant marine which shall consist of service as an officer or member of the crew on or in connection with a vessel documented under the laws of the United States or a vessel owned by, chartered to, or operated by or for the account or use of the government of the United States, or service by one who was employed by the War Shipping Administration or Office of Defense Transportation or their agents as a merchant seaman documented by the United States Coast Guard or Department of Commerce, or as a civil servant employed by the United States Army Transport Service (later redesignated as the United States Army Transportation Corps, Water Division) or the Naval Transportation Service; and who served satisfactorily as a crew member during the period of armed conflict, December seventh, nineteen hundred forty-one, to August fifteenth, nineteen hundred forty-five, aboard merchant vessels in oceangoing, i.e., foreign, intercoastal, or coastwise service as such terms are defined under federal law (46 USCA 10301 & 10501) and further to include “near foreign” voyages between the United States and Canada, Mexico, or the West Indies via ocean routes, or public vessels in oceangoing service or foreign waters and who has received a Certificate of Release or Discharge from Active Duty and a discharge certificate, or an Honorable Service Certificate/Report of Casualty, from the Department of Defense, or who served as a United States civilian employed by the American Field Service and served overseas under United States Armies and United States Army Groups in world war II during the period of armed conflict, December seventh, nineteen hundred forty-one through May eighth, nineteen hundred forty-five, and who (i) was discharged or released therefrom under honorable conditions, or(ii)
has a qualifying condition, as defined in section one of the veterans’ services law, and has received a discharge other than bad conduct or dishonorable from such service, or(iii)
is a discharged LGBT veteran, as defined in section one of the veterans’ services law, and has received a discharge other than bad conduct or dishonorable from such service, or who served as a United States civilian Flight Crew and Aviation Ground Support Employee of Pan American World Airways or one of its subsidiaries or its affiliates and served overseas as a result of Pan American’s contract with Air Transport Command or Naval Air Transport Service during the period of armed conflict, December fourteenth, nineteen hundred forty-one through August fourteenth, nineteen hundred forty-five, and who (iv) was discharged or released therefrom under honorable conditions, or(v)
has a qualifying condition, as defined in section one of the veterans’ services law, and has received a discharge other than bad conduct or dishonorable from such service, or(vi)
is a discharged LGBT veteran, as defined in section one of the veterans’ services law, and has received a discharge other than bad conduct or dishonorable from such service; or service in police duty on behalf of the United States government in a foreign country, if such person is a police officer, as defined by section 1.20 of the criminal procedure law, and if such police officer obtained the prior consent of his or her public employer to absent himself or herself from his or her position to engage in the performance of such service; or as an enrollee in the United States maritime service on active duty and, to such extent as may be prescribed by or under the laws of the United States, any period awaiting assignment to such service and any period of education or training for such service in any school or institution under the jurisdiction of the United States government, but shall not include temporary and intermittent gratuitous service in any reserve or auxiliary force. It shall include time spent in reporting for and returning from military duty and shall be deemed to commence when the public employee leaves his or her position and to end when he or she is reinstated to his or her position, provided such reinstatement is within ninety days after the termination of military duty, as hereinafter defined. Notwithstanding the foregoing provisions of this paragraph, the term “military duty” shall not include any of the foregoing services entered upon voluntarily on or after January first, nineteen hundred forty-seven and before June twenty-fifth, nineteen hundred fifty; and, on or after July first, nineteen hundred seventy, the term “military duty” shall not include any voluntary service in excess of four years performed after that date, or the total of any voluntary services, additional or otherwise, in excess of four years performed after that date, shall not exceed five years, if the service in excess of four years is at the request and for the convenience of the federal government, except if such voluntary service is performed during a period of war, or national emergency declared by the president.(c)
The term “termination of military duty” shall mean the date of a certificate of honorable discharge or a certificate of completion of training and service as set forth in the selective training and service act of nineteen hundred forty, and the national guard and reserve officers mobilization act of nineteen hundred forty or, or a certificate of release or discharge from active duty where an employee (i) has a qualifying condition, as defined in section one of the veterans’ services law, and has received a discharge other than bad conduct or dishonorable from such service, or(ii)
is a discharged LGBT veteran, as defined in section one of the veterans’ services law, and has received a discharge other than bad conduct or dishonorable from such service, or in the event of the incurrence of a temporary disability arising out of and in the course of such military duty, the date of termination of such disability. The existence and termination of such temporary disability, in the case of a public employee occupying a position in the classified civil service or of a person on an eligible list for a position in such service, shall be determined by the civil service commission having jurisdiction over such position and, in the case of a public employee occupying a position not in the classified civil service, shall be determined by the officer or body having the power of appointment.(d)
The term “position” shall mean the office or position held by a public employee at the time of his entrance upon military duty.2.
Leave of absence and re-employment.(a)
Every public employee shall be entitled to absent himself or herself from his or her position while engaged in the performance of military duty, except for those police officers who are required by paragraph (b) of subdivision one of this section to obtain the prior consent of their public employers before absenting themselves from their positions for military service, who accordingly shall be entitled to absent themselves from their positions only after obtaining such prior consent, and shall be deemed to have a leave of absence for the duration of such military duty. Such public employee shall be reinstated to his position as soon as possible provided he makes application for such reinstatement within ninety days after the termination of his military duty, or at any time during his terminal leave. Thereafter, he may be so reinstated, at any time after such ninety-day period and within one year after the termination of his military duty, in the discretion of the appointing officer or body.(b)
A public employee who resigned from his position during his military duty, or within six months prior to the commencement of such military duty, may, in the discretion of the appointing officer or body, be reinstated to his position within one year after the date of his resignation, excluding from said period the time he was on military duty. Every public employee reinstated under the provisions of this subdivision or pursuant to subdivision one-a of rule sixteen of the rules for the classified civil service for the state or pursuant to any comparable rule of a municipal civil service commission, shall be deemed to have been on a leave of absence for the duration of his military duty.3.
Substitutes. A position held by a public employee who is absent on military duty shall, so far as practicable, be continued in existence but shall be deemed temporarily vacant and shall be filled only when the public interest so requires. Any appointment to fill such vacancy shall be designated as a substitute appointment and the request for certification, the certification and the indicia of appointment shall show that the person is being appointed as a substitute. Any public employee, who accepts appointment as a substitute shall be granted a leave of absence from his former position until the termination of such appointment and the temporary vacancy resulting from such leave of absence shall be filled in like manner only when the public interest so requires and any appointment to such position shall also be designated as a substitute appointment and the request for certification, the certification and the indicia of appointment shall show that the person is being appointed to such position as a substitute. Every such substitute appointment shall be for a period not exceeding the leave of absence of the former incumbent and shall be made in accordance with the provisions of law applicable to such position, provided, however, that such substitute appointment may be continued for a period in excess of one year, notwithstanding the provisions of Civil Service Law § 15 (Optional forms of local civil service administration)section fifteen of the civil service law. Such substitute employee shall acquire no right to permanent appointment or tenure by virtue of his service as a substitute and such service may be terminated at any time in the discretion of the appointing officer or body. His rights, if any, with respect to appointment or tenure, shall not, however, be impaired in any way by his acceptance of an appointment as a substitute and his name shall remain on any eligible or other list and he shall be certified as eligible for any other appointment authorized by law during the existence of such list. The appointment of a substitute shall terminate (a) upon the return of the former incumbent to his position or (b) upon the death or permanent total disability of the former incumbent or (c) upon failure of the former incumbent to return to said position within ninety days after the termination of his military duty or (d) upon the appointment or promotion of the former incumbent to another position as authorized by subdivision six of this section, and, upon the happening of any of such events, said position may then be filled in the manner provided by law.4.
Pensions. Any public employee who is a member of any pension or retirement system may elect, while on military duty, to contribute to such pension or retirement system the amount which he would have contributed had his employment been continuous and upon making such contribution he shall have the same rights in respect to membership in the retirement system as he would have had if he had been present and continuously engaged in the performance of the duties of his position. Time during which a member is absent on military duty shall not constitute an interruption of continuous employment, but such time shall not be counted or included in determining the length of total service unless such member contributes to the retirement system the amount he or she would have been required to contribute if he or she had been continuously employed during such period. Such contribution, or any part thereof, may be paid at any time and from time to time, while in military duty, or within five years after the date of his or her restoration to his or her position or before December thirty-first, nineteen hundred sixty-two, whichever date is later, or in the event of the death of the member while in military duty such contribution, or any part thereof, may be paid by the named beneficiary or the legal representative of the member’s estate within one year following proof of such death. A member of the New York state employees’ retirement system or of the New York state and local police and fire retirement system, other than a member of the state police in a collective negotiating unit established pursuant to article fourteen of the civil service law, who is in the employ of the state on March thirty-first, nineteen hundred seventy, who failed to make such contributions during the prescribed period of time may nonetheless obtain credit for time during which he or she was on military duty by depositing with such retirement system an amount equal to the contribution he or she would have made had he or she made a timely election, with regular interest, on or before March thirty-first, nineteen hundred seventy-two, provided, however, such member may elect to deposit such amount over a period of time no greater than the period for which credit is being claimed, in which case such payments must commence no later than March thirty-first, nineteen hundred seventy-two. If the full amount of such payments is not paid to the retirement system, the amount of service credited shall be proportional to the total amount of the payments made. A member of the New York state and local police and fire retirement system who is a member of the state police in a collective negotiating unit established pursuant to article fourteen of the civil service law, who is in the employ of the state on March thirty-first, nineteen hundred seventy-one, who failed to make such contributions during the prescribed period of time may nonetheless obtain credit for time during which he or she was on military duty by depositing with such retirement system an amount equal to the contribution he or she would have made had he or she made a timely election, with regular interest, on or before March thirty-first, nineteen hundred seventy-two, provided, however, such member may elect to deposit such amount over a period of time no greater than the period for which credit is being claimed, in which case such payments must commence no later than March thirty-first, nineteen hundred seventy-two. If the full amount of such payments is not paid to the retirement system, the amount of service credited shall be proportional to the total amount of the payments made. A member of the New York state teachers’ retirement system, whose service terminates on the expiration of his contract, and for whom there is no employer to cover the cost of his accruing pension rights while in military service following the cessation of his contract, may pay in addition to his own contributions, an amount equal to the percentage of his salary which his employer would have paid had he remained under contract, which contributions shall be paid into the pension accumulation fund of the aforementioned retirement system and be treated as if they had been continued by his employer except that in the event of his death as a member prior to retirement or on his withdrawal of his accumulated contributions from the system, the amounts so paid by him shall be returnable, with regular interest, as if they were a part of his accumulated contributions. Such contributions or any parts thereof may be paid at any time and from time to time while in military duty or within five years after the member has returned to public school teaching in New York state or before December thirty-first, nineteen hundred sixty-two, whichever date is later. Any such member, while on military duty, or his beneficiary, as the case may be, shall be entitled to all benefits of the retirement system of which he is a member except accidental disability retirement and accidental death benefit. Any public employee holding a position by appointment who is or was a member of any pension or retirement system and who, while such member and while on military duty, applied for retirement as a member of such system to take effect within thirty days prior to the date of expiration of his appointment and who shall accordingly have been retired pursuant to such application but thereafter and within thirty days after the effective date of such retirement shall have been reappointed to his said position and shall have applied thereafter, before or upon his release from military duty, for membership in such pension or retirement system, shall be deemed to have had continuous membership in such pension or retirement system and shall be entitled to all the rights, benefits and privileges under his contract of membership as it existed at the time of such retirement, provided he shall (1) return any pension, annuity and retirement allowance payments received by him during the period of such retirement, (2) consent to the termination of his right to receive pension, annuity or retirement allowance payments on the basis of such retirement, (3) pay into the appropriate fund of such pension or retirement system the amount he would have contributed thereto, if he had not so retired, on the basis of the salary he was receiving when he so retired, and (4) pay into the appropriate fund of such pension or retirement system the amount which his employer would have paid thereto on his account if he had continued as a member during such period of retirement. 4-a. Notwithstanding the provisions of subdivision four of this section, in any case where any member of any pension or retirement system maintained under any provision of the administrative code of the city of New York, or under Education Law § 2575 (Retirement of employees of board of education)section twenty-five hundred seventy-five of the education law, did not, within five years after the date of the restoration of such member to his position, pay the contribution required by such subdivision four to be paid within such period, as a prerequisite to obtaining service credit in such system for the period of his military duty, such contribution, or any part thereof remaining due, may be paid on or before June thirtieth, nineteen hundred fifty-seven, provided that any such member who, on or before such last-mentioned date, retires or is retired, without having paid such contribution, shall not be entitled to make such payment. 4-b.(a)
As used in this subdivision, the following terms shall mean and include: (1) “New York city veteran of world war II”. Any member of the New York city employees’ retirement system in city-service who, after his or her last membership in such system began, served as a member of the armed forces of the United States during the period beginning on December seventh, nineteen hundred forty-one and ending on December thirty-first, nineteen hundred forty-six, and(i)
was honorably discharged or released under honorable circumstances from such service, or(ii)
has a qualifying condition, as defined in section one of the veterans’ services law, and has received a discharge other than bad conduct or dishonorable from such service, or(iii)
is a discharged LGBT veteran, as defined in section one of the veterans’ services law, and has received a discharge other than bad conduct or dishonorable from such service. (2) “New York city veteran of the Korean conflict.” Any member of the New York city employees’ retirement system in city-service who, after his or her last membership in such system began, served as a member of the armed forces of the United States during the period beginning on the twenty-seventh of June, nineteen hundred fifty and ending on the thirty-first day of January, nineteen hundred fifty-five, and(i)
was honorably discharged or released under honorable circumstances from such service, or(ii)
has a qualifying condition, as defined in section one of the veterans’ services law, and has received a discharge other than bad conduct or dishonorable from such service, or(iii)
is a discharged LGBT veteran, as defined in section one of the veterans’ services law, and has received a discharge other than bad conduct or dishonorable from such service.(b)
Notwithstanding any provision of subdivision four of this section to the contrary, any New York city veteran of World War II or New York city veteran of the Korean conflict who did not, within the applicable period of time prescribed by subdivision four of this section, comply with the requirements of such subdivision for obtaining service credit in the New York city employees’ retirement system for the period of his military duty, may, by a written application duly executed and filed with the board of estimate of the city of New York, prior to July first, nineteen hundred sixty-nine, elect to purchase such service credit. If such veteran shall pay to such retirement system, prior to July first, nineteen hundred sixty-nine, the amount which he would have contributed thereto if he had been continuously employed during such period of military duty, he shall have in such retirement system the service credit which he could have obtained for such period of military duty if he had complied with the requirements of such subdivision four within the period of time therein prescribed.5.
Rights upon restoration to position. A public employee restored to his position after the termination of his military duty or after the termination of his substitute appointment shall thereafter be entitled to the rate of compensation he would have received had he remained in his position continuously during such period of military duty or during such period of service as a substitute and shall be deemed to have rendered satisfactory and efficient service in such position during the period of his leave of absence and shall not be subjected directly or indirectly to any loss of time service, increment, or any other right or privilege, or be prejudiced in any way with reference to promotion, transfer, reinstatement or continuance in office. If a public employee, by reason of injuries sustained or disease contracted while on military duty, as hereinbefore defined, is incapable of efficiently performing the duties of his position after the termination of his military duty, he may, with the approval of the civil service commission having jurisdiction of such position, be transferred to any vacant position in the same jurisdictional classification and in the same governmental unit for which he has applied in writing and for which he has been found qualified, after such tests as the commission may deem appropriate, provided the rate of compensation for such position is not greater than the rate of compensation for the position to which such public employee was restored. If a promotion examination is held while a public employee entitled to participate therein is on military duty, such public employee shall be given a comparable examination, provided he makes request therefor within sixty days after restoration to his position. If he passes such examination his name shall be placed upon a special eligible list provided that his name would have been reached for certification between the date when he entered upon such military duty and the date that he was officially notified that he had passed such examination. Such special eligible list shall remain in existence for a period of two years from the date that the name of such person is placed thereon and such special eligible list shall be certified before certification shall be made from any subsequent or eligible list, whether open competitive, promotion or preferred which has been established for the same position, or from the original eligible list for such position. A public employee thus appointed after passing a comparable examination as herein provided, shall, for the purpose of computing seniority credit and training and experience credit upon promotion and seniority in the event of suspension or demotion, be deemed to have been appointed on the earliest date upon which any eligible, who was lower on the regular promotion eligible list, was appointed.6.
Appointment while on military duty. Any appointing officer or body may, in his or its discretion, fill a vacancy by the appointment or promotion of a public employee or any other person legally eligible for such appointment or promotion, notwithstanding the absence of such person or employee in military duty but such appointment or promotion shall not serve to increase in any degree any civil compensation which he may have been receiving pursuant to section six of chapter six hundred eight of the laws of nineteen hundred fifty-two. Such employee, upon the termination of his military duty shall have the same rights, privileges and obligations as if he had served continuously in such position from the date of his appointment thereto.7.
Status of existing lists. Any person whose name is on any eligible list shall, while in military duty, retain his rights and status on such list. If the name of any such person is reached for certification during his military duty, it shall be placed on a special eligible list in the order of his original standing, provided he makes request therefor following termination of his military duty and during the period of his eligibility on such list. Such list shall be certified before certification shall be made from a subsequent open competitive or promotion eligible list for the same position or from the original eligible list for such position. Such names shall remain on such special eligible list for a period of two years after the termination of such military duty. Any such person thus appointed shall, for the purpose of computing seniority credit and training and experience credit for promotion and date of membership in the retirement system and seniority in the event of suspension or demotion, be deemed to have been appointed on the earliest date upon which any eligible, who was the lower on such original eligible list, was appointed, provided, however that service credit shall be computed from the actual date of appointment. The retirement system contributions of any such person who made any contribution to the retirement system pursuant to article fourteen or fifteen of the retirement and social security law, and who was appointed on or after July twenty-seventh, nineteen hundred seventy-six shall not be refunded. 7-b. Status of applicants called for military duty before taking all parts of an examination. Any person who has passed one or more of several parts of an examination for a position for which competitive examinations are required, and who has been prevented from taking or completing the remaining part or parts of the examination for such position by reason of his service in military duty shall be afforded an opportunity to take a comparable examination as to such remaining part or parts, provided he makes request therefor during the period of ninety days following termination of his military duty. If he passes such examination his name shall be placed upon a special eligible list provided that his name would have been reached for certification between the date when he entered upon such military duty and the date that he was officially notified that he had passed such examination. Such special eligible list shall remain in existence for a period of two years from the date that the name of such person is placed thereon. Such special eligible list shall be certified before certification shall be made from a subsequent eligible list whether open competitive, promotion or preferred for the same position or from the original eligible list for such position. Any such person thus appointed shall, for the purpose of computing seniority credit and training and experience credit for promotion and seniority in the event of suspension or demotion, be deemed to have been appointed on the earliest date upon which any eligible was appointed who was lower on such original eligible list or lower in relative order of rating thereon than such person would have been had his name been entered thereon.8.
Service and efficiency ratings. A public employee who is absent on military duty shall be credited with the average of the efficiency ratings which he received for the three periods immediately prior to his absence on military duty but such rating shall not be less than a passing grade for the period of such absence, nor shall it be less than the rating which he received for the period immediately prior to his absence on military duty. In computing seniority and service requirements for promotion eligibility, such period of military duty shall be counted as service in the position held by such employee.9.
Probationary service. If a public employee or other person enters military duty before the expiration of the probationary period in any position to which he may have theretofore been appointed, or to which he may thereafter be appointed or promoted pursuant to subdivision six of this section, the time he is absent on military duty shall be credited as satisfactory service during such probationary period. 9-a. Probationary service of teachers. Notwithstanding the provisions of subdivision five of this section and subdivision four of section two hundred forty-two of this chapter, in any case where a teacher, as defined in Education Law § 3101 (Definitions)section thirty-one hundred one of the education law, enters military duty before the expiration of the probationary period to which he may have theretofore been appointed, the time he is absent on military duty shall be credited as satisfactory service during such probationary period. If the end of such probationary service occurs while the teacher is on military duty or within one year following the termination of such military duty, the period of such probationary service may be extended by the local board of education for a period of not to exceed one year from the date of termination of such military duty, but in no event for a period of probationary service in the actual performance of teaching services, exclusive of such military service, beyond that required by the school district at the time of his entry into military service.10.
Physical examination. If a physical examination is required for employment in or promotion to any position in the public service, the physical disability of a candidate incurred by reason of injury sustained or disease contracted while in military duty, as hereinbefore defined, or during the world war shall not be deemed to disqualify him for such position unless the disability is of such a nature as to prevent him from efficiently performing the duties of such position. 10-a. Age requirements. If maximum age requirements are established by law, or rule or by action of a civil commission for examination for, or for appointment or promotion to, any position in the public service, the period of military duty as hereinbefore defined, the period of service after June twenty-seventh, nineteen hundred fifty, voluntarily entered upon between January first, nineteen hundred forty-seven, and June twenty-seventh, nineteen hundred fifty, if such service otherwise falls within the definition of military duty, and the period of terminal leave granted by the military authorities of a candidate or eligible shall not be included in computing the age of such candidate or eligible for the purposes of such examination or appointment or promotion; provided, however, that neither shall the total time deducted hereunder in computing the age of a candidate or eligible exceed seven years for any position including, but not limited to, in cities with a population of one million or more. 10-b. If a public employer consolidates, abolishes, displaces, or demotes a position, in accordance with section eighty or eighty-five of the civil service law, which is occupied by a public employee currently on active duty with the armed forces of the United States, as pursuant to title ten, fourteen or thirty-two of the United States code, such employer shall comply with subdivisions eleven and twelve of this section and, upon the termination of the public employee’s active duty, as defined in title ten, fourteen or thirty-two of the United States code, such public employer shall provide full re-employment rights warranted to such employee under the Federal Uniformed Services Employment and Reemployment Rights Act of 1994, provided, however, the right of re-employment under this subdivision does not entitle such employee to displacement rights over any person with greater seniority. Such public employer shall not abolish any position or positions solely based upon the fact that the position or positions are currently filled by an individual or individuals engaged in military duty.11.
Preferred lists. If the position occupied by a public employee is abolished prior to the termination of his military duty his name shall be placed forthwith upon a preferred list, as herein provided. Public employees in the competitive class of the civil service shall have their names placed upon a preferred eligible list, pursuant to the provisions of Civil Service Law § 81 (Preferred lists)section eighty-one of the civil service law and public employees subject to sections twenty-five hundred ten, twenty-five hundred eighty-five and twenty-five hundred eighty-eight of the education law shall have their names placed upon a preferred list as provided in such section.12.
Military re-employment lists. If the position occupied by a public employee, who is not included in the provisions of subdivision eleven of this section, has been abolished or is no longer in existence upon the termination of his military duty such employee, upon filing a written request within ninety days after the termination of his military duty, shall have his name placed forthwith, upon a military re-employment list, as herein provided, for the position last held by him or any similar position. The military re-employment list for public employees in the classified civil service, other than in the competitive class, shall be established by the civil service commission having jurisdiction of such position and such list for public employees who are not in the classified civil service shall be established by the officer who makes payment of the wages or salary for such position. Separate lists shall be established for positions in the non-competitive and the labor class of the classified civil service. After the establishment of a military re-employment list, it shall be made available to appointing officers and bodies and no position shall be filled until the appointing officer or body certifies to the civil service commission or to the disbursing officer, as the case may be, that no person on such military re-employment list, who formerly held the same or a similar position, is qualified to fill and willing to accept appointment to such vacancy. The civil service commission or the disbursing officer, as the case may be, shall refuse to approve the payroll for such position until such certificate is filed. Appointments from a military re-employment list may be made without regard to the order of standing on said list. Eligibility for appointment from such military re-employment list shall not continue for a period longer than four years from the date of termination of military duty. Refusal to accept an offer of appointment to a position similar to the last held by such public employee shall cause the removal of his name from such list. Upon a failure or refusal to comply with the provisions of subdivisions eleven and twelve of this section, the supreme court is empowered, upon the filing of a petition or other appropriate pleading, by the public employee entitled to the benefits of such provisions, to specifically require compliance therewith, and may, as an incident thereto, compensate such employee for any loss of wages suffered by reason of such unlawful action. The court shall order a speedy hearing in any such case and shall advance it on the calendar. Nothing in this subdivision shall be construed to apply to positions in the exempt class of the classified civil service.13.
Temporary positions. The provisions of subdivisions three and five of this section shall not be applicable to a public employee holding a temporary position, but such employee shall, nevertheless, be placed upon a military re-employment list, as provided in subdivision twelve of this section and, so far as practicable, shall be restored to a position similar to that held at the time such employee entered military duty.14.
Public employees appointed for a definite term. A public employee appointed for a definite term shall be deemed to have a leave of absence until the end of his term of office and until his successor has been appointed, but not thereafter, for the purpose of determining his rights under this section.15.
Elective officers. The provisions of subdivision four of this section shall be applicable to an elective officer and he shall be deemed to continue in his office until his successor has been elected, but not thereafter, for the purpose of determining his rights under such subdivision. No other provisions of this section shall be applicable to elective officers.16.
Salaries. Nothing in this section shall be construed to give any public employee any claim for salary or compensation during his absence on military duty.17.
Certificates as to service. A certificate signed by the commander, total army personnel center as to persons in the army or in any branch of the United States service while serving pursuant to law with the army of the United States, signed by the commander, naval military personnel as to persons in the United States service while serving pursuant to law with the United States navy, and signed by the commandant, United States marine corps, as to persons in the marine corps, or in any other branch of the United States service while serving pursuant to law with the marine corps, signed by the chief, air force military personnel center as to persons in the United States service while serving pursuant to law with the United States air force or signed by an officer designated by any of them, respectively, for the purpose, shall when produced be prima facie evidence as to any of the following facts stated in such certificate: That a person named has not been, or is, or has been in military service; the time when and the place where such person entered military service, his residence at that time, and the rank, branch, and unit of such service that he entered, the dates within which he was in military service, the monthly pay received by such person at the date of issuing the certificate, the time when and the place where such person died in or was discharged from such service. It is the duty of the foregoing officers to furnish such certificate on application, and any such certificate when purporting to be signed by any one of such officers, or by any person purporting upon the face of the certificate to have been so authorized, shall be prima facie evidence of its contents and of the authority of the signer to issue the same.18.
Rights and privileges of public employees and other persons while engaged in essential war work. Every public employee, or other person to whom this section is applicable, who has been or may be discharged or relieved from military duty on condition that he engage in work essential to the prosecution of the war, shall be entitled, while engaged in such work, to all the rights and privileges to which he would have been entitled, under the provisions of this section, had he continued to perform military duty. A certificate of the war manpower commission, or of the United States employment service, or of the proper authorities in the armed forces of the United States, or of any other authorized federal agency, that any such public employee, or other person to whom this section is applicable, is or has been, for the period stated in such certificate, engaged in such work, shall be required in order to confer upon such employee or person the rights and privileges accorded by this subdivision, and such certificate shall be presumptive evidence of such facts.19.
Leaves of absence and re-employment of certain teachers and school supervisors. A member of the teaching or supervising staff in a school district other than a school district employing a superintendent of schools shall be entitled to absent himself from his position while engaged in the performance of military duty and shall be deemed to have a leave of absence for the duration of such military duty. Such person shall be reinstated to his position provided he makes application for such reinstatement within ninety days after the termination of his military duty, notwithstanding that his contract with the school district shall have expired.20.
Payment of pension contributions by city of New York. A. As used in this subdivision: (1) the term “New York city member” shall mean any public employee (a) who was granted a leave of absence for the period of his military duty pursuant to the provisions of subdivision two of this section and who was on April eleventh, nineteen hundred forty-seven, or shall become prior to January first, nineteen hundred fifty-two, a member of any pension or retirement system to which the city of New York, the Triborough bridge and tunnel authority, or the New York city housing authority is required by law to make contributions on account of such employee, or(b)
who was on April eleventh, nineteen hundred forty-seven, or shall thereafter become a member of any such system and who is or shall be entitled to seniority credit and training and experience credit under the provisions of subdivision seven, seven-a or seven-b of this section by reason of appointment from an eligible list or special eligible list, but such term shall not include any public employee whose rights as to civil compensation are or were governed by section six of chapter six hundred eight of the laws of nineteen hundred fifty-two; (2) the term “system” shall mean any pension or retirement system referred to in subsection (1) of paragraph A of this subdivision. B. Except as otherwise provided in paragraphs C, D and E of this subdivision, any New York city member shall have as to any period of military duty performed by him the same rights and shall be entitled to the same benefits in respect to his membership in any system as he would have had if he had been present and continuously engaged in the performance of the duties (1) of the position from which he was granted a leave of absence pursuant to the provisions of subdivision two of this section, if he is not entitled to seniority and training and experience credit as provided by subdivision seven, seven-a or seven-b of this section, and was not appointed to a position while on military duty as provided by subdivision six of this section, or (2) if he was granted such leave and received an appointment as provided by subdivision six of this section, of the position from which he received such leave of absence, up to the date of such appointment, and thereafter as if he had been present and continuously engaged in the performance of the duties of such position to which he was appointed, or (3) if granted such leave of absence and entitled to credit as provided by subdivision seven, seven-a or seven-b of this section, of the position from which he was granted such leave of absence, up to the date upon which he is deemed to have been appointed as provided in such subdivision seven, seven-a or seven-b and thereafter as if he had been present and continuously engaged in the performance of the duties of the position with respect to which the date on which he is deemed to have been appointed is specified by such subdivision seven, seven-a or seven-b, or (4) if he did not receive such leave, but is entitled to credit under such subdivision seven, seven-a or seven-b, of the position to which he is deemed to have been appointed on the date specified therein, and as if he had actually been appointed and had entered upon the performance of the duties of such position upon such date. C. No New York city member shall be entitled to any of the rights, benefits or credit conferred by this subdivision with respect to (1) any period of military duty, or portion thereof, during which the military base pay of such member or his compensation for military duty performed other than as a member of the armed forces, exceeded the civil compensation of the position or positions with respect to which his rights and benefits for the corresponding period or portion thereof are determined by the provisions of paragraph B of this subdivision, or (2) any period of military duty or portion thereof prior to the date upon which any member, who was not granted a leave of absence pursuant to the provisions of subdivision two of this section, is deemed to have been appointed by virtue of the provisions of subdivision seven, seven-a or seven-b of this section. As to any period of military duty or portion thereof referred to in subsection (1) of this paragraph, the rights of any such member with respect to membership in any system shall be governed by the provisions of subdivision four of this section. D. Time during which any New York city member was absent on military duty shall not constitute an interruption of continuous employment and, except as provided in paragraph C of this subdivision, such time shall be counted and included in determining the length of total service. E. Upon the death or retirement of a New York city member, but not otherwise, the city of New York, the Triborough bridge and tunnel authority, or the New York city housing authority (whichever shall have first employed such member after the termination of his military duty) shall pay into the appropriate fund of the system in which such member held membership at the time of his death or retirement, the amount of all contributions which such member would have been required to make if, during the period of his military duty, he had been present and had continuously performed the duties of the position or positions with respect to which his rights and benefits during the corresponding period or portion thereof are determined by the provisions of paragraph B of this subdivision; provided that such city or authority shall not pay into any such fund any contributions payable or accruing for any period of military duty or portion thereof, referred to in paragraph C of this subdivision. Each such member shall be credited with such contributions paid in his behalf by such city or authority for all pension or retirement purposes; provided that (1) any portion of any retirement allowance, pension, death benefit or other benefit or right derived from such contributions paid in behalf of such member by such city or authority, shall be such amount as the payment required by this paragraph, made at the time herein specified, shall provide, (2) such member shall not under any circumstances have the right to withdraw the amount of such contributions, or any interest thereon, as a part of his accumulated deductions or otherwise, and (3) such contributions shall be excluded in determining the amount of any loan which any such member shall be entitled to make. F. In any case where any New York city member has heretofore paid or shall hereafter pay to any system any contributions which the city of New York, the Triborough bridge and tunnel authority, or the New York city housing authority is required to pay to such system by the provisions of this subdivision, such contributions shall be regarded as excess contributions which are (1) creditable in lieu of regular contributions (a) upon the return of such member to his position after the termination of his military duty, or(b)
upon his becoming a member of such system, if he did not become a member thereof until after the termination of such duty, or (2) payable in addition to other benefits upon separation meanwhile with benefit.
Source:
Section 243 — Provisions applicable to public employees who are absent on military duty, https://www.nysenate.gov/legislation/laws/MIL/243 (updated Feb. 23, 2024; accessed Apr. 13, 2024).
