In our opinion, the city, or any local government employer, would not be required to re-employ the returning officer. As a general rule an employer must re-employ an employee who is serving on a military assignment. However, there are certain exceptions; 38 USC § 4312(d)(1)(A) (part of USERRA) states:

(d)(1) An employer is not required to reemploy a person under this chapter if -

(A) the employer's circumstances have so changed as to make such reemployment impossible or unreasonable;

(B) in the case of a person entitled to reemployment under subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313, such employment would impose an undue hardship on the employer; or

(C) the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue
indefinitely or for a significant period.

(2) In any proceeding involving an issue of whether -

(A) any reemployment referred to in paragraph (1) is impossible or unreasonable because of a change in an employer's circumstances ...

In A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA), the US Department of Labor states:

Changed circumstances Section 4312(d)(1)(A)).

Reemployment of a person is excused if an employer’s circumstances have changed so much that reemployment of the person would be impossible or unreasonable. A reduction-in-force that would have included the person would be an example. (Emphasis added)

Thus, it appears that the city would not be required to re-employ the returning officer.

Yes, the elected official must be granted a leave of absence. RCW 73.16.041 provides:

When any elective officer of this state or any political subdivision thereof, including any judicial officer, shall enter upon active service or training as provided in RCW 73.16.031,73.16.033 and 73.16.035, the proper officer, board or other agency, which would ordinarily be authorized to grant leave of absence or fill a vacancy created by the death or resignation of the elective official so ordered to such service, shall grant an extended leave of absence to cover the period of such active service or training and may appoint a temporary successor to the position so vacated. No leave of absence provided for herein shall operate to extend the term for which the occupant of any elective position shall have been elected.

So, a city or county is required to keep the position open by granting an extended leave of absence, but the position may be filled with a "temporary successor." The leave of absence would not extend beyond the elected official's term.

This provision presents a practical problem with respect to a returning probationary employee if, upon return, the probationary employee does not successfully complete probation. Under civil service law, a city or county may terminate a probationary employee during the probationary period "if the appointing power deems him unfit or unsatisfactory for service in the [fire or police department or office of county sheriff]." RCW 42.08.100; 41.12.100; 41.14.130. So, the probationary employee is, basically, an at-will employee who may be terminated for less than just cause. The statutory civil service probationary period is, for city police and fire departments, from three to six months (RCW 42.08.100; 41.12.100) and, for the county sheriff's office, one year (RCW 41.14.130). (Some cities provide for a longer probationary period than specifically authorized by state law.) But, under USERRA, a city or county may not terminate even a probationary employee for six months or a year after reemployment, depending upon the length of service (as long as the service was for more than 30 days), except for just cause.

So what does a city or county do with a returning probationary employee who cannot be terminated except for cause for six months or a year after reemployment if the city or county determines, during the remainder of the probationary period after reemployment, that the employee is "unfit or unsatisfactory for service"? If a city or county wants to terminate a returning probationary employee for less than cause before the end of the probationary period, it may not do so until the applicable six-month or one-year period under USERRA ends. But the city or county would in this situation (in most cases) be faced with the problem of either extending the probationary period beyond that authorized in the local civil service rules or allowing the probationary employee to become a "regular" employee who cannot be terminated, under civil service law, except for just cause.

So, it may behoove a city or county to allow in its civil service rules for the probationary period to be extended under this circumstance. Then, upon expiration of the six-month or one-year period after reemployment, as the case may be, the employee would still be on probation and could then be terminated for less than cause. Assuming that this is the way USERRA would be applied in this circumstance, the probationary employee who would be terminated would receive the USERRA benefit of not being fired except for cause for a six-month or one-year period, but he or she would not receive the seniority-based benefits under USEERA.

In general, employees returning to employment from military service are entitled to the seniority and rights and benefits that they would have with reasonable certainty attained had they remained continuously employed. 38 U.S.C. §4316(a). However, a returning probationary employee is not entitled to automatic completion of his/her probationary period because completion of probation is not based on seniority but rather is subject to a "significant contingency" - satisfactory performance during the probationary period. (Although USERRA does not employ the term "significant contingency," it is applied in this context by numerous resources that were consulted on this question.)

Once the returning probationary employee satisfactorily completes the probationary period, then he or she would receive those seniority-based rights and benefits that were not immediately available, because of probationary status, upon return from military service. In other words, those seniority-based rights and benefits are deferred until completion of the probationary period.

If the length of a person's vacation is determined by length of service, then the time spent on active duty would be added to the length of the employee's employment for determining the amount of vacation he or she is entitled to. For example, if an employee adds a day of vacation for each year of employment, he or she would add a day of vacation if on military leave for a year.

For more information on this topic, see our Military Leave page.

Under USERRA (cited above) it appears that the person goes into the higher position, so long as he is qualified for the position or could become qualified for the position after reasonable efforts by the city. If after reasonable efforts the person is not qualified, he would be returned to the position he held when he left for military service.

Under Washington law, an employee is entitled to a military leave of absence for a period not to exceed 21 days each calendar year. RCW 38.40.060. During this leave, the employee continues to be paid his or her regular salary.

Under a 1999 attorney general opinion, a day is calculated according to the number of days the person would have worked, but for the military training. Thus, if the employee were scheduled to work 2 hours on a day, but for the military commitment, that would be a military leave day. Similarly, if the employee was scheduled to work 12 hours on a single day, that too would constitute one military leave day. See AGO 1999 N0. 2.

It does not matter whether the person was ordered to take the training or whether he or she volunteered. See 38 USC sec. 4301(13).

There is no requirement that a Washington employer grant more than 21 days paid leave; however, the employer must agree to, under most circumstances, reemploy the employee, under terms of the federal Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301 et seq. (USERRA). The reemployment rights end after five years cumulative total of military service. The rights are available whether the person is in combat, active duty for training, or inactive duty.

A method for calculating use of military leave is contained in an attorney general opinion, AGO 1999 No. 2. This AGO contains examples of different work schedules and how to calculate military leave time.

For more information on this subject, see our "Military Leave" Web page.

[T]he employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.

Only very temporary positions, such as seasonal workers, are excluded (and, according to one commentator, this exclusion is very narrowly construed). A newly-hired employee is covered.