Accruing vacation and sick leave credits during leave for ordered military leave
An employee of the State as the employer absent from his or her position while on “ordered military duty,” is placed on military leave* from his or her position in accordance with provisions in the State Military Law and the Rules of the State Civil Service Commission. While on such military leave Rules of the State Civil Service Commission provided that the employee does not accrue vacation or sick leave credits unless he or she is "in full pay status for at least seven workdays during [the] biweekly pay period" during such absences for ordered military duty.**
The Department ultimately denied there request and Claimants sued the Department seeking, among other things, a declaration that the denial of vacation and sick leave accruals during their respective periods of military leave violated both the Uniformed Services Employment and Reemployment Rights Act, 38 USC §4301 et sec, [USERRA]), and §242 of the State’s Military Law and sought a court order directing the Department to calculate and credit the amount of vacation and sick leave accruals that they would have otherwise earned but for their absences for ordered military service.
Although §242(4) prohibits an employer from subjecting an employee on a leave of absence due to ordered military duty "to any loss or diminution of time service, increment, vacation or holiday privileges, or any other right or privilege, by reason of such absence," the Appellate Division pointed out that “state employees on military leave/supplemental military leave (such as [Claimants]) are entitled to be paid for certain specified periods of time, and the parties do not dispute that such employees also may utilize certain accrued leave credits to extend their full pay status.”
* Military Leave is leave without pay except as otherwise provided by State law, rule or regulation.