Can a first responder or law enforcement officer who works for an Arkansas state, city, or county take paid leave for voluntary National Guard or reservist training, and does the employer have to hold the job?

Plain-English summary

A state representative asked whether Arkansas public employees, particularly first responders and law enforcement officers, could take leave for voluntary or nonmandatory military training, whether their positions had to remain open, and whether that leave could be open ended.

The AG read the questions as concerning training or service covered by Ark. Code Ann. § 21-4-102(a), rather than active duty. She answered yes to the first question if the training or service was performed in an official duty status, and yes to preservation of the position during that statutory leave. She answered no to the third: the leave is limited to 15 days plus necessary travel time per calendar year, with accrual over two years potentially allowing 30 days if no such leave was taken the prior year.

The statute quoted in the opinion covers state and political-subdivision employees taking part in National Guard or reserve training programs. Its separate Public Health Service Ready Reserve language applies to state employees. The AG said a factual inquiry might be needed to determine whether a particular employee's circumstances trigger the leave.

What this means for you

If you are a public employee seeking leave

Check whether your planned training or service fits the statutory program and is performed in official duty status. The AG said qualifying employees are entitled to leave on request and retain their status and benefits during it. The opinion does not decide whether any particular training event qualifies.

If you administer leave for a public employer

Assess the actual training or duty status and the employee's statutory coverage. For qualifying leave under § 21-4-102(a), preserve the employee's position, salary, and listed benefits. Apply the annual limit and the statute's two-year accrual rule.

Currency note

This opinion was issued in 2021. Verify current Arkansas law before applying its leave limits.

Common questions

Does the statute exclude first responders or law enforcement officers? The AG identified no exception for those positions. Her answer depended on the training or service meeting § 21-4-102(a)'s requirements.

Is the leave paid?
Yes, for leave under the provision discussed. The AG's footnote cites § 21-4-102(b)(1) for the employee's regular salary during leave.

Does the employer have to preserve the position?
Yes, for qualifying leave under subsection (a). The opinion cites subsection (d)(1), which preserves seniority, ratings, promotional status, retirement and insurance benefits, and other accrued rights.

Can the leave continue indefinitely?
No. The AG expressly answered that subsection (a) leave is not open ended. It is limited to 15 days plus necessary travel time per calendar year, with potential two-year accrual up to 30 days if no leave was taken the preceding year.

Did the AG decide federal military-leave rights?
No. Her footnote limits the official opinion to state law and directs federal questions to the U.S. Attorney's office.

Background and statutory framework

Ark. Code Ann. § 21-4-102(a)(1) sets the covered training and annual leave entitlement. Subsection (b)(1) continues regular salary, subsection (d)(1) preserves employee rights and benefits, and subsection (e) permits the specified two-year accrual. The AG based her answers on that state statute and left fact-specific eligibility to the relevant circumstances.

Citations

• Ark. Code Ann. § 21-4-102(a)(1)
• Ark. Code Ann. § 21-4-102(b)(1)
• Ark. Code Ann. § 21-4-102(d)(1)
• Ark. Code Ann. § 21-4-102(e)
• Ark. Code Ann. § 25-16-706

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STAT E O F ARKAN SAS
ATTO RN EY GE N ERAL
LES LI E RUTL EDGE

Opinion No. 2021-035

August 16, 2021

The Honorable Kenneth B. Ferguson
State Representative
P. 0. Box 5661
Pine Bluff, AR 71611-5661

Dear Representative Ferguson:

This is in response to your request for an opinion on the following questions concerning military training leave time for public employees:

1. Is a state, city or county employee, more specifically those positions that are classified as first responders or law enforcement, allowed to take a leave of absence for voluntary or non-mandatory military training or service?

2. When a state, city or county employee, more specifically those positions that are classified as first responders or law enforcement, takes such a leave of absence from his/her position, is the state, city or county governmental entity required to keep the position open until said employee returns from his/her leave of absence?

3. Does the aforementioned leave of absence have to be time definite or is it allowed to be open-ended?

As background for these questions, you state that federal and state law are clear regarding leave time for employees who are called for active military duty , but that "questions arise when a state, city, or county employee ' volunteers ' for additional

323 C ENTER STR EET. SU IT E 200 · L ITTLE R OC K. A RKAN SAS 7220 1 TEL EPH ONE (50 1) 682-200 7 ·FAX (5 0 1) 682-8084 Al.KA N SAS A G .GO V

The Honorable Kenneth B. Ferguson
State Representative
Opinion No. 2021-035
Page 2

or optional military training that does not correlate with active military duty." (emphasis added). 1

RESPONSE

Although your question does not clearly state what you mean by "voluntary" and "non-mandatory" military training or service, I gather from the background information that you provided that you are not asking about active duty training or service. Instead, I gather you mean to ask about the kinds of voluntary programs described in Ark. Code Ann. § 21-4-102 (Supp. 2019). That statute affords employees of the state and its political subdivisions a certain number of days of paid leave to participate in optional training. With that understanding, the answer to your first question is yes. The answer to your second question is yes as to a leave of absence under subsection 21-4-102( a). In response to your third question, the leave of absence afforded by subsection 21-4-102( a) is not open-ended. It is limited to 15 days, plus necessary travel time, in a calendar year (though the leave time accrues over two years, for a maximum of 30 days if the employee took no leave under subsection 21-4-102(a) in the preceding year).

DISCUSSION

Question I: Is a state, city or county employee, more specifically those positions that are classified as first responders or law enforcement, allowed to take a leave of absence for voluntary or non-mandatory military training or service?

I gather from the background information provided in your correspondence that you are asking about training or service that is "voluntary" or "non-mandatory" in the sense that it is not active military duty training or service. In this regard, Ark. Code Ann.§ 21-4-102 grants a leave of absence any time a public employee "desire[s] to take a leave of absence" for purposes enumerated in the statute, which include "annual training requirements or other duties performed in an official duty status":

All employees of the state, as defined in § 21-4-203, or of any of its 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 and auxiliary

1
The scope of my review in the context of providing an official Attorney General opinion is limited to questions of state law. See Ark. Code Ann. § 25-16-706 (Rep I. 2014 ). Accordingly, to the extent you are inquiring about federal law, I must suggest that you consult the U.S. Attorney's office.

The Honorable Kenneth 8. Ferguson
State Representative
Opinion No. 2021-035
Page 3

branches of the armed forces and all state employees who are members of the United States Public Health Service Ready Reserve Corps who desire to take a leave of absence for the purpose of participating in the civil defense and public health training programs made available by the United States Public Health Service 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. 2

In response to your question, therefore, as long as the trammg or service is "performed in an official duty status," the employee "shall be entitled" to the leave of absence afforded by this statute. A factual inquiry may be necessary to determine whether a particular employee's circumstances trigger this leave.

Question 2: When a state, city or county employee, more specifically those positions that are classified as first responders or law enforcement, takes such a leave of absence from his/her position, is the state, city or county governmental entity required to keep the position open until said employee returns from his/her leave of absence?

"Yes" as to a leave of absence granted by the above subsection 21-4-102(a). The employee does not lose his or her status or benefits during such leave of absence:

During a leave of absence, the employee shall be entitled to preserve all seniority rights, efficiency or performance ratings, promotional status, retirement privileges, life and disability insurance benefits, and any other rights, privileges, and benefits to which they have become entitled. 3

Question 3: Does the aforementioned leave of absence have to be time definite or is it allowed to be open-ended?

2
Ark. Code Ann. § 21-4-102( a )(I).

3
Id. at § 21-4-102( d)(l ). The employee is also entitled to his or her regular salary during such leave of absence. Id. at§ 21-4-102(b)(l).

The Honorable Kenneth B. Ferguson
State Representative
Opinion No. 2021-035
Page 4

A leave of absence under subsection 21-4-102( a) is not open-ended. It is limited to "a period of fifteen ( 15) days plus necessary travel time ... in any one ( 1) calendar year." 4

Sincerely,

~~:~-::::::;~- ;. . /./?1-'fa
LESLIE RUTLEDGE
Attorney General

4
Id. at§ 21-4-102(a)(l). The statute allows the employee to aggregate accrued leave time over two years, thus potentially authorizing 30 days of leave in any given year if the employee took no such leave in the preceding year. Id. at § 21-4-102( e ).