Opinion No. (1980)

REQUESTED BY: Edward C. Binder, Adjutant General.
Can a probationary employee of the state, or one of its political subdivisions, who is called up for military training or who undertakes military duty in the active service of the state be required by his employer to serve out the balance of his probationary period upon his return to the job if it otherwise would have run had he not been called up for such duty?

No.

Section 55-161, R.R.S. 1943, states in pertinent part:

"All officers and employees, including teachers employed on a one-year contract basis and elected officials, of the state, or of any of its agencies or political subdivisions, who leave a position other than temporary to undergo military training with the armed forces of the United States or undertake military duty in the active service of the state, shall be entitled to a leave of absence from such civil employment for the period of such training or service, not to exceed four years, . . . When such person is separated from such training or service under honorable conditions, or upon his discharge from hospitalization incident to that duty, such employee shall be entitled to return to his former position with such seniority, status, pay, and vacation as he would have had it he had not been absent for such purpose, if he is still qualified to perform the duties of his former position, and if he makes application within thirty days after he is released from such training or service. . . ."

Additionally, section 55-163, R.R.S. 1943, provides in pertinent part:

"Absence for military training as provided in sections 55-160 to 55-162 shall not affect the employee's right to receive normal vacation, sick leave, bonus, advancement, and other advantages of his employment normally to be anticipated in his particular position."

On the basis of the foregoing statutes, we conclude that when an employee of the state or one of its political sub-divisions, is called up for military duty before his probationary period has passed, his employer must treat each day of such military training or service just as though he were actually on the job and thereby moving closer to the end of the probationary period.

Said employers may not hold the running of the probationary period in abeyance until the employee returns from his military training or service.