19-11-111. Right of reinstatement to former employment.

(a) Any person who is absent from a position of employment by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this article within ten (10) days of application for reemployment if all of the following conditions are met:

(i) The person or the authorized officer of the uniformed service in which the service is performed has given advance written or verbal notice of service to the person's employer;

(ii) The cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five (5) years;

(iii) Except as provided in subsection (f) of this section the person reports to, or submits an application for reemployment to, the employer in accordance with subsection (e) of this section;

(iv) If the person has been discharged from the uniformed services, the discharge was an honorable discharge or a discharge under honorable conditions.

(b) Notice is not required under subsection (a) of this section if the giving of the notice is precluded by military necessity or, under all of the relevant circumstances, the giving of the notice is otherwise impossible or unreasonable. A determination of military necessity for the purposes of this subsection shall be made pursuant to regulations prescribed by the uniformed services 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 uniformed services if the person's cumulative period of service in the uniformed services with respect to the employer relationship for which a person seeks reemployment does not exceed five (5) years, except that the period of service shall not include any service:

(i) That is required, beyond five (5) years, to complete an initial period of obligated service;

(ii) During which the person was unable to obtain orders releasing the person from a period of service in the uniformed services before the expiration of the five (5) year period and the inability was through no fault of the person;

(iii) Performed to fulfill additional training requirements determined to be necessary for professional development or for completion of skill training or retraining; or

(iv) Performed by a member of a uniformed service who has been:

(A) Ordered to or retained on active duty in time of war or national or state emergency;

(B) Ordered to or retained on active duty other than for training under any provision of law during a war or during a national emergency declared by the president or the congress or emergency declared by the governor; or

(C) Ordered to active duty in support of a critical mission or requirement of the uniformed services.

(d) An employer is not required to reemploy a person under this section if the employer demonstrates that:

(i) The employer's circumstances have so changed as to make reemployment impossible or unreasonable;

(ii) The reemployment would impose an undue hardship on the employer; and

(iii) The employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.

(e) Subject to subsection (f) of this section, a person referred to in subsection (a) of this section shall, upon the completion of a period of service in the uniformed services, notify the employer referred to in subsection (a) of this section of the person's intent to return to a position of employment with the employer as follows:

(i) In the case of a person whose period of service in the uniformed services was less than thirty-one (31) days, by reporting to the employer in the following manner:

(A) 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;

(B) As soon as possible after the expiration of the eight (8) hour period referred to in subparagraph (A) of this paragraph, if reporting within that period is impossible or unreasonable through no fault of the person.

(ii) In the case of 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 uniformed services, by reporting in the manner and time referred to in paragraph (i) of this subsection;

(iii) In the case of a person whose period of service in the uniformed services 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 such application within such period is impossible or unreasonable through no fault of the person, the next first full calendar day when submission of such application becomes possible; or

(iv) In the case of a person whose period of service in the uniformed services was for more than one hundred eighty-one (181) days, by submitting an application for reemployment with the employer not later than ninety (90) days after the completion of the period of service.

(f) A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed service, 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, in the case of a person described in paragraphs (e)(i) and (ii) of this section or submit an application for reemployment with his employer, in the case of a person described in paragraphs (e)(iii) and (iv) of this section. Except as provided in paragraph (e)(ii) of this section, such period of recovery may not exceed two (2) years. The two (2) years shall be extended by the minimum time required to accommodate the circumstances beyond such person's control which makes reporting within the period specified in paragraph (e)(i) of this section impossible or unreasonable. A person who fails to report or apply for employment or reemployment within the appropriate period specified in subsections (e) and (f) of this section shall not automatically forfeit his 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.

(g) A person who submits an application for reemployment in accordance with paragraph (e)(iii) or (iv) of this section shall provide, upon request by the person's employer, to the person's employer documentation to establish the following:

(i) The person's application is timely;

(ii) The person has not exceeded the service limitations set forth in paragraph (a)(ii) of this section, except as permitted under subsection (c) of this section; and

(iii) If the person has been discharged from the uniformed service, the discharge was an honorable discharge or a discharge under honorable conditions.

(h) Documentation of any matter referred to in subsection (g) of this section that satisfies regulations prescribed by the adjutant general shall satisfy the documentation requirements in subsection (g) of this section. Failure to provide documentation that satisfies regulations prescribed by the adjutant general shall not be a basis for denying reemployment in accordance with the provisions of this section if the failure occurs because the 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 that the person does not meet one (1) or more of the requirements referred to in paragraph (g)(i), (ii) or (iii) of this section, the employer of the person may terminate the employment of the person and the provision of any rights or benefits afforded the person under this section. 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 this subsection and subsection (g) of this section before beginning to treat the person as not having incurred a break in service for pension purposes. An employer may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not then readily available.

(j) The right of a person to reemployment under this section shall not entitle such person to retention, preference or displacement rights over any person with a superior claim under the provisions of title 5, United States Code, relating to veterans and other preference eligibility.

(k) In any determination of a person's entitlement to protection under this section, the timing, frequency and duration of the person's training or service, or the nature of such training or service, including voluntary service, in the uniformed services, shall not be a basis for denying protection under this section if the service does not exceed the limitations set forth in subsection (c) of this section the notice requirements established in paragraph (a)(i) of this subsection and the notification requirements established in subsection (e) of this section are met.

(m) Any employee, who applies for reemployment in accordance with the provisions of this law, shall be entitled to complete any training program that was applicable to his former position of employment during his period of service in the uniformed services.

(n) Any employee who is restored to or employed in a position in accordance with the provisions of this section shall not be discharged from such position without cause within one (1) year after such restoration or reemployment.

(o) Notwithstanding any provision of law to the contrary, an employee shall be reinstated to his former position as a teacher immediately upon application and shall be entitled to receive that compensation which he would have received if he would have been employed on a nine (9) month basis and had prorated his salary over twelve (12) months. The employee shall be reinstated prior to the end of the twelve (12) months.

(p) A person who is reemployed under this section is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority, rights and benefits that such person would have attained if the person had remained continuously employed.