§38. Reemployment of persons called to duty in state military forces and national guard of other states

A. Any person who is called or ordered to active duty in the service of the national guard of this state or of any other state, the state militia or any other military force of this state and who has performed satisfactorily, shall, upon his release and return from such military duty or recovery from disease or injury resulting therefrom, under honorable conditions, be reinstated in or restored to the same or comparable position of employment, except a temporary position, which he held at the time he was called to such duty. Such person shall report to his place of employment within seventy-two hours after his release from duty or recovery from disease or injury resulting therefrom, as the case may be, and his employer or his employer's successor, whether an agency of the state or its political subdivision or a private employer, shall reinstate or restore such person in the same or comparable position which he left at the time of his call to duty at no less compensation than that which he was receiving at the time of his call to duty or to a position of like seniority, status, benefits, and pay. However, if such person is not qualified or capable of performing the essential functions and duties of the same position by reason of disability sustained during his call to duty, but is otherwise qualified by reason of education, training, or experience to perform another position in the employ of the employer or his successor, the employer or his successor shall employ such person in that other or comparable position, the essential functions and duties of which he is physically capable and qualified to perform, that will provide like seniority, status, benefits, and pay provided the employment does not pose a direct threat or significant risk to the health and safety of the individual or others that cannot be eliminated by reasonable accommodation. Any such person called to duty shall, if he has performed satisfactorily and has been released under honorable conditions, be entitled to a certificate to that effect, signed by such person's commanding officer.

B. Any person who is restored to his position in accordance with the provisions of Subsection A of this Section, shall be considered as having been on temporary leave of absence during the period for which he is called to active duty, shall be restored without loss of seniority, shall be entitled to participate in any benefits offered by the employer pursuant to established rules and practices relating to employees on leave of absence in effect with the employer at the time such person was called to duty as provided herein, and shall not be discharged from such position without cause within one year after restoration to the position.

C. It is understood and declared to be the intent of this Section that any person who is restored to a position in accordance with the provisions of Subsections A and B shall be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his answering the call to state duty until the time of his restoration to such employment.

D. In the event any employer or his successor fails or refuses to comply with the provisions of this Section, mandamus proceedings may be instituted in the district court in and for the parish in which the employer or his successor maintains a place of business, specifically to require such employer or his successor to comply with such provisions and to compensate such person for any loss of wages or benefits suffered by reason of such employer's action, and any such compensation shall be in addition to and shall not be deemed to diminish any of the benefits of such provisions. Upon application to the district attorney of the parish or comparable official in which the employer or his successor maintains a place of business, by any person claiming to be entitled to the benefits of such provisions, the district attorney or official, if reasonably satisfied that the person so applying is entitled to such benefits, shall appear and act as attorney for such person in the amicable adjustment of the claim or in the filing of an appropriate pleading and the prosecution thereof specifically to require the employer or his successor to comply with the provisions. No fees or court costs shall be taxed against any person who may apply for such benefits. The employer or his successor shall be deemed the only necessary party defendant to any such action.

E. In any case in which two or more persons who are entitled to be restored to a position under the provisions of this Section or of any law relating to similar reemployment or reinstatement benefits left the same position in order to enter the state call to duty, the person who left the position first shall have the prior right to be restored thereto, without prejudice to the reemployment rights of the other person or persons to be restored.

F. The secretary of the Louisiana Workforce Commission or the director of the state Department of Civil Service shall render aid in the reinstatement of persons to their positions in accordance with the provisions of this Section.

Acts 1974, No. 622, §1; Acts 1992, No. 447, §4; Acts 2002, 1st Ex. Sess., No. 57, §1, eff. April 18, 2002; Acts 2008, No. 743, §7, eff. July 1, 2008.