Opinion No.
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The Honorable Jerry Bookout State Senator P.O. Box 415 Jonesboro, AR 72401

Dear Senator Bookout:

This is in response to your request for an opinion regarding Act 673 of 1991 (codified at A.C.A. §§ 6-17-306, 21-4-102 and21-4-212 (Cum. Supp. 1991)), as it pertains to military leave for employees of political subdivisions. Your specific questions are as follows:

1. Can the 15 days paid leave granted be divided up by the employee and used in small increments? For example, weekend drills?

2. Does the travel time mentioned in the statute require the political subdivision to give more than 15 days per year if the military unit orders travel time?

3. Is an employee who begins in the middle of a calendar year entitled to the full 15 days leave or can the employer prorate the leave time for that employee?

With regard to your first question, you note that an employer is denying the use of the leave time for weekend drills, maintaining that it can only be used for the two week summer camp training session. The specific language of the act states, in relevant part, that:

[a]ll employees . . . of any of [the state's] political subdivisions who desire to take a leave of absence for the purpose of participating in the military training programs made available by the National Guard or any of the reserve branches of the armed forces . . . shall be entitled to such a leave of absence for a period of fifteen (15) days plus necessary travel time for annual training requirements or other duties performed in an official duty status in any one (1) calendar year. [Emphasis added.]

A.C.A. § 21-4-102(a).

The act does not define "annual training requirements" or "other duties performed in an official duty status." It is my understanding, however, that in actual practice, "official duty status" may come about in two ways: either through an individual order or an order directed to an entire unit. Both orders result in official duty status for the individuals covered. To the extent, therefore, that the required weekend drills result from an official order, it is my opinion that military leave may be taken under § 21-4-102. The employer's position in this instance that the leave may only be used for the summer camp training is, in my opinion, untenable in light of the language of §21-4-102(a).

It should be noted in this regard that in accordance with subsection (b)(1) of § 21-4-102, when leave is granted the employee is entitled to his regular salary "during the time he is away from his duties during such leave of absence." Thus, if the employee in question does not have any weekend duties, no payment would be owing, regardless of the leave issue.

Regarding the use of this leave time in small increments generally, this office has previously noted that unlike the vacation and sick leave provisions in the state employees' Uniform Attendance and Leave Policy Act, Act 673 of 1991 contains no clear authority for charging less than a full day against an employee's leave. See Op. Att'y Gen. 92-186 at 2 (copy enclosed). It was concluded in that Opinion, however, that the details in application are perhaps best left to the employer, with an eye toward the manner in which vacation and sick leave are administered.

In response to your second question, § 21-4-102(a) clearly states that the employee is entitled to the fifteen day leave of absence "plus necessary travel time." Thus, assuming that the travel time is for annual training requirements or other duties performed in an official duty status, and that it is "necessary," the answer to this question is "yes."

It is my opinion, in response to your third question, that the employee would be entitled to the full fifteen days of leave. The leave is granted "per calendar year," and fifteen days accumulate for use in the succeeding year. See A.C.A. § 21-4-102(a) and (e). There is no suggestion that the leave should be prorated based upon length of employment.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh

Enclosure