Chapter 311 Oregon Laws 2003

AN ACT

HB 3212

Relating to military leave of absence for state active duty; amending ORS 399.075 and 399.230; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 399.075 is amended to read:

399.075. (1) The Adjutant General, with the approval of the Governor, may order members of the organized militia to active state duty. Members, while on [such] active state duty, shall receive not less than the pay and allowances of their corresponding grades in the Armed Forces of the United States in accordance with a schedule approved by the Adjutant General for the period of time in active state duty. Active state duty under this subsection includes, but is not limited to, support of federal, state and local drug eradication, interdiction and other counterdrug operations under a counterdrug support plan approved by the Governor, and reasons related to homeland security. When participating in such support operations, and to the extent authorized by 32 U.S.C. 112, applicable regulations of the National Guard Bureau and the Oregon Counterdrug Support Plan, the Oregon Military Department is designated as a law enforcement agency for the purpose of carrying out federal asset forfeiture laws only.

(2) Members of the organized militia serving on courts-martial, courts of inquiry, efficiency boards, medical boards or other special duty requiring absence from their stations or business under competent orders may be reimbursed for necessary expenses incurred at the rate established for state employees under appropriate travel regulations issued by the Oregon Department of Administrative Services.

(3) In lieu of other provisions of this chapter, a medical examiner may be paid for services and necessary disbursements and a properly appointed judge advocate may be paid for legal services and necessary disbursements in any suit, action or proceeding, such amounts as shall be approved by the Governor.

(4) Members of the organized militia shall not receive from the state the pay or the pay and allowances provided for by this section when eligible for such pay and allowances from federal funds.

(5) Notwithstanding any of the provisions of this chapter, members of the organized militia may with their consent perform without pay or without pay and allowances any of the types of military duty prescribed in this chapter and ORS chapters 396 and 398 pursuant to orders issued by competent military authority; provided however, that necessary traveling expenses, subsistence and per diem allowances may be furnished such members within the discretion of the Adjutant General and within the amount appropriated therefor.

(6) All pay and allowances provided for by this chapter, except per diem, mileage and expenses while traveling under orders shall be subject to be applied to the payment of penalties and fines imposed by military courts, and to the payment of any shortage of or injury to state or United States property or funds for which a member of the organized militia is responsible or accountable where such responsibility has been fixed by competent authority.

(7)(a) Except as provided in paragraph (b) of this subsection, members of the organized militia who are ordered to active state duty shall be considered temporary employees of the military department.

(b) Members of the organized militia who are ordered to active state duty are not subject to ORS chapter 240 and ORS 243.650 to 243.782.

(8) The limitations on employment imposed by ORS 238.082 (2) do not apply to a retired member of the Public Employees Retirement System who has attained normal retirement age and is on active state duty.

SECTION 2. ORS 399.230 is amended to read:

399.230. (1) When an employee who is a member of the organized militia of this state is called into active service of the state [by the Governor] under ORS 399.065 (1) or 399.075, the employee shall be granted a leave of absence by the employer of the employee until release from such active service permits the employee to resume the duties of employment.

(2) The regular employment position of an employee on leave of absence for active service of the state under this section shall be considered vacant only for the period of the leave of absence. The employee shall not be subject to removal or discharge from such position as a consequence of the leave of absence.

(3) Upon the termination of the leave of absence for active service of the state, an employee shall:

(a) Resume the duties of employment within seven calendar days; and

(b) Be restored to the employee’s position or an equivalent position by the employer without loss of seniority, vacation credits, sick leave credits, service credits under a pension plan or any other employee benefit or right which had been earned at the time of the leave of absence.

(4) An employer is not required to pay wages or other monetary compensation to an employee during a leave of absence required under subsection (1) of this section.

(5) As used in this section:

(a) “Employee” means any individual, other than a copartner of the employer or an independent contractor, who renders personal services in this state to an employer who pays or agrees to pay wages or other compensation to the individual for those services.

(b) “Employer” means any person who employs one or more employees in this state. The term includes the State of Oregon or any county, city, district, authority, public corporation or entity and any of their instrumentalities organized and existing under law or charter, but does not include the federal government.

SECTION 3. This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect on its passage.

Approved by the Governor June 11, 2003

Filed in the office of Secretary of State June 11, 2003

Effective date June 11, 2003

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