§ 4312. Reemployment rights and benefits
Oklahoma Statutes AnnotatedTitle 44. MilitiaEffective: April 21, 2021
Effective: April 21, 2021
44 Okl.St.Ann. § 4312
§ 4312. Reemployment rights and benefits
A. Subject to subsections B, C and D of this section and subject to Section 6 of this act,1 any person whose absence from a position of employment is necessitated by reason of service in the state military forces shall be entitled to the reemployment rights and benefits and other employment benefits of the Oklahoma Uniformed Services Employment and Reemployment Rights Act if:
B. No notice is required under paragraph 1 of subsection A of this section if the giving of notice is precluded by military necessity or, under all of the relevant circumstances, the giving of notice is otherwise impossible or unreasonable. A determination of military necessity for the purposes of this subsection shall be made pursuant to the applicable regulations prescribed by the Secretary of Defense pursuant to 38 U.S.C., Section 4312 or pursuant to regulations prescribed by the Adjutant General and shall not be subject to judicial review.
C. Subsection A of this section shall apply to a person who is absent from a position of employment by reason of service in the state military forces if his or her cumulative period of service in the state military forces, with respect to the employer relationship for which he or she seeks reemployment, does not exceed five (5) years, except that any such period of service shall not include any service:
c. ordered to or retained on state active duty or Title 32 active duty, other than for training, under any provision of state or federal law to execute the laws of the state, or suppress insurrections or repel invasions or for any state emergency declared by the Governor or the Oklahoma Legislature, as determined by the Adjutant General for state active duty or by the Secretary concerned for Title 32 active duty; or
b. for a person entitled to reemployment under paragraph 3 or 4 of subsection A of Section 9 of this act2 or subparagraph b of paragraph 2 of subsection B of Section 9 of this act, the employment would impose an undue hardship on the employer, or
the employer shall have the burden of proving the impossibility or unreasonableness, undue hardship, or the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period.
E. 1. Subject to paragraph 2 of this subsection, a person referred to in subsection A of this section shall, upon the completion of a period of service in the state military forces, notify the employer referred to in such subsection of the person's intent to return to a position of employment with such employer as follows:
(1) not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight (8) hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence, or
b. for a person who is absent from a position of employment for a period of any length for the purposes of an examination to determine the person's fitness to perform service in the state military forces, by reporting in the manner and time referred to in subparagraph a of paragraph 1 of this subsection,
c. for a person whose period of service in the state military forces was for more than thirty (30) days but less than one hundred eighty-one (181) days, by submitting an application for reemployment with the employer not later than fourteen (14) days after the completion of the period of service or if submitting the application within the period is impossible or unreasonable through no fault of the person, the next first full calendar day when submission of the application becomes possible, or
2. a. A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the state military forces shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person's employer, for a person described in subparagraph a or b of paragraph 1 of this subsection or submit an application for reemployment with such employer, for a person described in subparagraph c or d of paragraph 1 of this subsection. Except as provided in subparagraph b of this paragraph, the period of recovery shall not exceed two (2) years.
3. A person who fails to report or apply for employment or reemployment within the appropriate period specified in this subsection shall not automatically forfeit his or her entitlement to the rights and benefits referred to in subsection A of this section but shall be subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work.
3. a. Except as provided in subparagraph b of this paragraph, the failure of a person to provide documentation that satisfies regulations prescribed pursuant to paragraph 2 of this subsection shall not be a basis for denying reemployment in accordance with the provisions of the Oklahoma Uniformed Services Employment and Reemployment Rights Act if the failure occurs because such documentation does not exist or is not readily available at the time of the request of the employer. If, after reemployment, documentation becomes available that establishes the person does not meet one or more of the requirements referred to in subparagraphs a, b and c of paragraph 1 of this subsection, the employer of such person may terminate the employment of the person and the provision of any rights or benefits afforded the person under the Oklahoma Uniformed Services Employment and Reemployment Rights Act.
b. An employer who reemploys a person absent from a position of employment for more than ninety (90) days may require that the person provide the employer with the documentation referred to in subparagraph a of this paragraph before beginning to treat the person as not having incurred a break in service for pension purposes.
H. In any determination of a person's entitlement to protection under the Oklahoma Uniformed Services Employment and Reemployment Rights Act, the timing, frequency, and duration of his or her training or service, or the nature of the training or service, including voluntary service, in the state military forces shall not be a basis for denying protection of the Oklahoma Uniformed Services Employment and Reemployment Rights Act if the service does not exceed the limitations set forth in subsection C of this section and the notice requirements established in paragraph 1 of subsection A of this section and the notification requirements established in subsection E of this section are met.
Credits
Laws 2021, c. 122, § 8, emerg. eff. April 21, 2021.
44 Okl. St. Ann. § 4312, OK ST T. 44 § 4312
Current with emergency effective legislation through Chapter 257 of the Second Regular Session of the 59th Legislature (2024). Some sections may be more current, see credits for details.
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