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 three related questions about military training leave for Arkansas public employees, especially first responders and law enforcement: are they entitled to take such leave, does the employer have to keep the job open, and can the leave be open-ended.

Attorney General Leslie Rutledge answered yes to the first two and no to the third. Ark. Code Ann. § 21-4-102(a)(1) gives every employee of the state or its political subdivisions paid leave for "annual training requirements or other duties performed in an official duty status" with the National Guard, military reserves, or U.S. Public Health Service Ready Reserve. The employee is entitled to that leave on request: the statute says "shall be entitled." The employer cannot refuse it because the role is "first responder" or "law enforcement," because there is no carve-out in the statute for those positions.

Subsection (d)(1) says the employee preserves seniority, performance ratings, promotional status, retirement, life and disability insurance, and any other rights or benefits during the leave. Subsection (b)(1) says the employee gets regular salary during the leave too. So the employer has to hold the position open and treat the absence as paid duty time, not as unpaid leave or as a gap in service.

But the leave is not unlimited. The statute caps it at 15 days plus necessary travel time per calendar year. Unused leave from the prior year can carry forward, so a maximum of 30 days is possible in a year if the employee took none the year before.

The opinion limits itself to state law. The federal half (USERRA, the Uniformed Services Employment and Reemployment Rights Act) was outside the AG's review per Ark. Code Ann. § 25-16-706, and the AG suggested directing federal questions to the U.S. Attorney's office.

What this means for you

If you are a first responder, police officer, or firefighter who is also in the Guard or Reserves

Based on this opinion, your Arkansas public employer must give you up to 15 days of paid military training leave per calendar year (plus travel time), and must hold your job and preserve your seniority and benefits. If you skipped the leave last year, you can stack last year's unused leave on top of this year's, up to 30 days. Your employer cannot deny it because of your role's safety-sensitive nature.

To trigger the leave you should be performing training or duties in "official duty status." Bring orders or training notices and the request will be straightforward. If your employer refuses, point them to § 21-4-102(a)(1) and this AG opinion.

If you are an HR director or department head with first responders on staff

The statute is mandatory, not discretionary. Refusing the leave or treating the absence as unpaid is inconsistent with the AG's reading. Build the leave into your scheduling: 15 days per calendar year per affected employee, plus travel, and adjust mutual-aid or backfill arrangements accordingly.

If a particular request looks doubtful (for example, the employee says they want training leave but cannot point to orders or duties in "official duty status"), the AG's view is that this becomes a fact question the agency can investigate. But denial of clearly-orders-backed training is not a defensible posture.

If you are an employee curious about other federal protections

This opinion is state-law only. USERRA covers separate ground (mostly long active-duty and unpaid leave) and gives broader reemployment rights. For federal questions, talk to a USERRA-experienced attorney or the U.S. Department of Labor's Veterans' Employment and Training Service (VETS). Ark. Code Ann. § 21-4-102 is on top of, not instead of, USERRA.

Common questions

Q: Are first responders treated differently from other public employees here?
A: No. The statute applies to "all employees of the state, as defined in § 21-4-203, or of any of its political subdivisions." There's no exception for police, firefighters, EMTs, or correctional officers. The AG flagged that this came up because of staffing concerns in those roles, but those concerns do not override the statute.

Q: How many days do I get?
A: Up to 15 days per calendar year, plus necessary travel time. If you didn't take any military-training leave last year, you can take up to 30 days this year (the rolling two-year cap in § 21-4-102(e)).

Q: Is the leave paid?
A: Yes. Section 21-4-102(b)(1) preserves the employee's regular salary during the leave.

Q: Does my employer have to keep my job?
A: Yes. Section 21-4-102(d)(1) preserves seniority, evaluation ratings, promotional status, retirement, life and disability insurance, "and any other rights, privileges, and benefits to which they have become entitled" during the leave.

Q: What about active-duty mobilization?
A: That is a different situation, governed primarily by federal USERRA and other federal statutes. This Arkansas opinion does not address it.

Q: What does "official duty status" mean?
A: The opinion does not exhaustively define it. The statute lists "annual training requirements or other duties performed in an official duty status." If you have orders, that is the strongest evidence. Voluntary participation in training programs that the National Guard or Reserves "make available" generally counts; the statute reads as inclusive of such programs.

Background and statutory framework

Ark. Code Ann. § 21-4-102 governs paid military leave for Arkansas state and local government employees. The full structure:

• § 21-4-102(a)(1): 15 days of paid leave per calendar year (plus travel time) for participation in training or other official-duty-status programs of the National Guard, military reserves and auxiliaries, or U.S. Public Health Service Ready Reserve Corps.
• § 21-4-102(b)(1): The employee receives regular salary during the leave.
• § 21-4-102(d)(1): During the leave, the employee preserves seniority, ratings, promotional status, retirement privileges, insurance benefits, and other accrued rights.
• § 21-4-102(e): Allows accrual across two years for a 30-day maximum if no leave was taken in the prior year.

Ark. Code Ann. § 21-4-203 supplies the cross-referenced definition of "state employee."

The AG's authority to issue advisory opinions is bounded to state law per Ark. Code Ann. § 25-16-706, which is why she pointed the federal questions elsewhere.

Citations

• Ark. Code Ann. § 21-4-102 (military leave for public employees)
• Ark. Code Ann. § 21-4-102(a)(1) (15-day paid leave)
• Ark. Code Ann. § 21-4-102(b)(1) (regular salary continues)
• Ark. Code Ann. § 21-4-102(d)(1) (preservation of rights and benefits)
• Ark. Code Ann. § 21-4-102(e) (two-year accrual)
• Ark. Code Ann. § 21-4-203 (definition of state employee)
• Ark. Code Ann. § 25-16-706 (AG opinion authority limited to state law)

Source

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

Original opinion text

Opinion No. 2021-035
August 16, 2021
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Kenneth B. Ferguson
State Representative
P.O. 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
or optional military training that does not correlate with active military duty."
(emphasis added).

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 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?

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
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.

In response to your question, therefore, as long as the training 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.

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

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."

Sincerely,
LESLIE RUTLEDGE
Attorney General

[Footnotes:
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 (Repl. 2014). Accordingly, to the extent you are inquiring about federal law, I must suggest that you consult the U.S. Attorney's office.
2 Ark. Code Ann. § 21-4-102(a)(1).
3 Id. at § 21-4-102(d)(1). The employee is also entitled to his or her regular salary during such leave of absence. Id. at § 21-4-102(b)(1).
4 Id. at § 21-4-102(a)(1). 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).]