[ Home ] [ ILCS ] [ Search ] [ Bottom ]
[ Other General Assemblies ]
Public Act 92-0716
HB4457 Enrolled LRB9214505DJmg
AN ACT in relation to military affairs.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Military Code of Illinois is amended by
adding Article V-A and changing the heading of Article VII as
follows:
(20 ILCS 1805/Art. V-A heading new)
ARTICLE V-A. NATIONAL GUARD EMPLOYMENT RIGHTS
(20 ILCS 1805/30.1 new)
Sec. 30.1. Article short title. This Article may be
cited as the Illinois National Guard Employment Rights Law.
(20 ILCS 1805/30.5 new)
Sec. 30.5. Public policy. As a guide to the
interpretation and application of this Article, the public
policy of the State is declared as follows:
The United States has provided for the reemployment
rights of members of the Reserve Components of the armed
forces, and of the National Guard of the states, while
serving in duty or training statuses pursuant to Title 10 or
32 of the United States Code, by enacting the Uniformed
Services Employment and Reemployment Rights Act, codified at
Title 38, United States Code, Chapter 43. The Uniformed
Services Employment and Reemployment Rights Act, however,
does not provide any such protection to members of the
National Guard serving the states, including the State of
Illinois, in a State Active Duty status pursuant to orders of
the Governor.
The United States has also provided relief from certain
civil obligations for personnel of the United States armed
forces serving on federal active duty under Title 10 of the
United States Code, by enacting the Soldiers' and Sailors'
Civil Relief Act of 1940, codified at Title 50 Appendix,
United States Code, Sections 501-591. Members of the National
Guard serving other than in such a federal active duty status
under Title 10 of the United States Code, however, are not
subject to, nor do they receive the protections of, the
Soldiers' and Sailors' Civil Relief Act of 1940.
As a constituent commonwealth of the United States, and
in accordance with the constitutions of the United States and
of the State of Illinois, the State of Illinois must provide
for the defense of its citizens and territory against
domestic and foreign threats, and the Illinois National Guard
is an essential part of the State's ability to meet such
threats. It is therefore declared to be the policy of the
State of Illinois (i) to ensure the readiness of members of
the National Guard to execute missions assigned by
appropriate federal or State authorities by guaranteeing
adequate protections of their right to return to civilian
employment upon completion of State Active Duty and (ii) to
grant members of the National Guard relief from certain civil
obligations while performing periods of training or duty
under Title 32 of the United States Code and State Active
Duty.
(20 ILCS 1805/30.10 new)
Sec. 30.10. Definitions. In this Article:
"National Guard" has the definition provided by federal
law at 10 U.S.C. 101(c).
"Illinois National Guard" has the definition provided in
Sections 5 and 7 of this Code.
"Federal active duty under Title 10 of the United States
Code" means active federal service of members of the National
Guard pursuant to any provision of Chapter 1209 of Title 10
of the United States Code.
"Training or duty under Title 32 of the United States
Code" means active or inactive National Guard training or
duty performed pursuant to Chapter 5 of Title 32 of the
United States Code and pursuant to the orders of the
Governor.
"State Active Duty" means National Guard duty performed
in the active service of any state or United States territory
or commonwealth in accordance with that jurisdiction's laws
and pursuant to the orders of the Governor concerned. It does
not refer to active duty performed pursuant to Chapter 5 of
Title 32 of the United States Code and pursuant to the orders
of the Governor.
"Political subdivision" means any unit of local
government or school district.
(20 ILCS 1805/30.15 new)
Sec. 30.15. National Guard; State Active Duty;
reemployment rights.
(a) Any member of the National Guard ("a member")
employed by a private employer in the State of Illinois or by
the State of Illinois or any political subdivision of the
State whose absence from a position of employment is
necessitated by reason of being called to State Active Duty,
whether or not voluntary, shall be entitled to reemployment
rights and benefits and other employment benefits under this
Article if:
(1) the member (or an appropriate officer of the
National Guard in which the service is performed) has
given advance written or oral notice of the service, if
reasonably possible;
(2) the member reports to, or submits an
application for reemployment to, the employer in
accordance with the provisions of subsection (e); and
(3) the character of the member's service on State
Active Duty was honorable, under honorable conditions, or
otherwise characterized as satisfactory.
(b) No notice is required under subsection (a) if
precluded by military necessity, or if the giving of the
notice is not reasonably possible, under all relevant
circumstances. A written determination of military necessity
for the purposes of this subsection shall be made by the
Adjutant General of Illinois and shall not be subject to
judicial review.
(c) An employer is not required to reemploy a member
under this Section if:
(1) the employer's circumstances have so changed as
to make such reemployment impossible or unreasonable, or
if reemployment would impose an undue hardship on the
employer; or
(2) the employment from which the member leaves to
serve in the National Guard on State Active Duty is for a
brief, nonrecurrent period and there is no reasonable
expectation that the employment will continue
indefinitely or for a significant period.
(d) In any proceeding involving an issue of whether (i)
any reemployment referred to in subsection (c) is impossible
or unreasonable because of a change in an employer's
circumstances; (ii) any accommodation, training, or effort
referred to in subdivision (c)(1) would impose an undue
hardship on the employer; or (iii) the employment referred to
in subdivision (c)(2) is for a brief, nonrecurrent period and
there is no reasonable expectation that the employment will
continue indefinitely or for a significant period, the
employer has the burden of proving the impossibility or
unreasonableness, the undue hardship, or the brief or
nonrecurrent nature of the employment without a reasonable
expectation of continuing indefinitely or for a significant
period.
(e) Subject to subsection (f), a member referred to in
subsection (a) shall, upon completion of a period of State
Active Duty, notify the employer referred to in subsection
(a) of the member's intent to return to a position of
employment with the employer as follows:
(1) In the case of a member whose period of State
Active Duty was less than 31 days, by reporting to the
employer:
(A) not later than the beginning of the first
full regularly scheduled work period on the first
full calendar day following completion of the period
of State Active Duty and the expiration of 8 hours
after a period allowing for safe transportation of
the member from the place of that duty to the
member's residence; or
(B) as soon as possible after the expiration
of the 8-hour period referred to in paragraph (A),
if reporting within that period is impossible or
unreasonable through no fault of the member.
(2) In the case of a member whose period of State
Active Duty was more than 30 days but less than 180 days,
by submitting an application for reemployment with the
employer not less than 14 days after completion of the
period of State Active Duty, or if submitting the
application within that period is impossible or
unreasonable through no fault of the member, the next
full calendar day when submission of the application
becomes possible.
(3) In the case of a member whose period of State
Active Duty was 180 days or more, by submitting an
application for reemployment with the employer not later
than 90 days after completion of the period of service.
(f) A member who is hospitalized for, or convalescing
from, an illness or injury incurred in, or aggravated during,
the performance of a period of State Active Duty shall, at
the end of the period that is necessary for the member to
recover from the illness or injury, report to the member's
employer or submit an application for reemployment with the
employer. The period of recovery shall not exceed 2 years,
except that the 2-year period shall be extended by the
minimum time required to accommodate the circumstances beyond
the member's control which make reporting within the 2-year
period impossible or unreasonable.
(g) A member who fails to report or apply for employment
or reemployment within the appropriate period specified in
this Section shall not automatically forfeit his or her
rights and benefits under subsection (a), 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.
(h) A member who submits an application for reemployment
in accordance with this Article shall, upon the request of
the employer, provide to the employer documentation to
establish that:
(1) the member's application is timely; and
(2) the character of the member's service was
honorable, under honorable conditions, or otherwise
satisfactory.
The failure of a member to provide documentation as
prescribed in this subsection may not be the basis for
denying reemployment if the failure occurs because the
documentation does not exist or is not readily available at
the time of the employer's request. If, after reemployment,
documentation becomes available that establishes that the
member does not meet one or more of the requirements in
paragraph (1) or (2), the employer may terminate the member's
employment in accordance with the conduct rules, established
policy, and general practices of the employer pertaining to
explanation and discipline with respect to absence from
scheduled work. An employer may not delay or attempt to
defeat a reemployment obligation by demanding documentation
that does not exist or is not then readily available.
(i) Except as otherwise provided by this subsection, a
member entitled to reemployment under this Article, upon
completion of a period of State Active Duty, shall be
promptly reemployed in the position of employment which he or
she left with the same increases in status, seniority, and
wages that were earned during his or her period of State
Active Duty by employees in like positions who were on the
job at the time the returning member entered State Active
Duty, or to a position of like seniority, status, and pay,
unless the employer's circumstances have so changed as to
make it impossible or unreasonable to do so.
If at the time of requesting reemployment, the member is
no longer physically, mentally, or otherwise qualified or
able to perform the duties of the position of employment
which he or she left due to disability acquired incident to
his or her service in State Active Duty, but is qualified and
able to perform the duties of any other position in the
employ of the employer, then the member shall be restored to
that other position, the duties of which he or she is
qualified and able to perform and that will provide him or
her with like seniority, status, and pay, or the nearest
approximation thereof consistent with the circumstances of
the case.
If a member enters State Active Duty and the position of
employment which he or she left is filled by one or more
employees who are also members of the National Guard and who
later enter State Active Duty, the members shall, upon
release from State Active Duty, be given preference in the
matter of reemployment in the order in which they entered
State Active Duty, and the employer shall not be required to
retain more than one of them in his or her employ.
(j) Except as otherwise provided in this Section, each
member in the employ of a private employer or of the State of
Illinois or a political subdivision of the State who, for the
purpose of entering State Active Duty, has left or leaves
that employment but who has been rejected for State Active
Duty for lack of proper qualifications, shall be restored by
the employer (i) to the position of employment which the
member left with the same seniority, status, and wage
increases that an employee who was employed in that position
at the time the member left to enter State Active Duty earned
during the time the member was absent from employment because
of his or her attempt to enter State Active Duty or (ii) to a
position of like seniority, status, and pay, provided that at
the time of the rejection for State Active Duty the member is
qualified to perform the duties of the position of employment
which he or she left and has made application for
reemployment within the time period specified in subsection
(e) after receiving official notice of the rejection for
State Active Duty.
(20 ILCS 1805/30.20 new)
Sec. 30.20. Reemployment; benefits.
(a) Any member of the National Guard who is reemployed
or seeks reemployment to a position of employment in
accordance with the provisions of this Article, shall be
considered as having been on furlough or leave of absence
during his or her State Active Duty and shall be so
reemployed without loss of seniority and shall be entitled to
participate in insurance or other benefits offered by the
employer pursuant to established rules and practices relating
to employees on furlough or leave of absence in effect with
the employer at the time the member entered State Active
Duty. The member shall not be discharged from the position
without cause within one year after reemployment.
(b) If an employer provides health insurance, an
exclusion or waiting period may not be imposed in connection
with coverage of a health or physical condition of a member
entitled to participate in that insurance under this Section,
or a health or physical condition of any other person who is
covered by the insurance by reason of the coverage of that
member, if: (i) the condition arose before or during that
member's period of State Active Duty; (ii) an exclusion or
waiting period would not have been imposed for the condition
during a period of coverage resulting from participation by
that member in the insurance; and (iii) the condition of that
member has not been determined to be service connected.
(20 ILCS 1805/30.25 new)
Sec. 30.25. Stay of prosecution. During and for a
period of 14 days after a period of training or duty in
excess of 29 days either under Title 32 of the United States
Code or under State Active Duty, a court having jurisdiction
over the enforcement of any civil obligation or liability,
the prosecution of any civil suit or proceeding, or the entry
or enforcement of any civil order, writ, judgment, or decree
may stay, postpone, or suspend the matter if the court
determines that a person's failure to meet the obligation is
the direct result of that period of training or duty. The
stay, postponement, or suspension of proceedings does not in
any way modify any condition, obligation, term, or liability
agreed upon or incurred by a person in military service
including but not limited to accrued interest, late fees, or
penalties. No stay, postponement, or suspension shall be
provided regarding any written agreement entered into, or
debt that is incurred, by the person during or after his or
her period of training or duty either under Title 32 of the
United States Code or under State Active Duty.
(20 ILCS 1805/30.30 new)
Sec. 30.30. School attendance and tuition. Any person
in federal active duty under Title 10 of the United States
Code, or in training or duty under Title 32 of the United
States Code, or in State Active Duty, pursuant to the orders
of the Governor has the right to receive a full monetary
credit or refund for funds paid to any Illinois public
university, college, or community college if the person is
placed into a period of military service with the State of
Illinois pursuant to the orders of the Governor and is unable
to attend the university or college for a period of 7 or more
days. Withdrawal from the course shall not impact upon the
final grade point average of the person. If any person who
has been enrolled in any Illinois public university, college,
or community college is unable to process his or her
enrollment for the upcoming term, he or she shall have any
and all late penalties and or charges set aside, including
any and all late processing fees for books, lab fees, and all
items that were not in place because the person was engaged
in military service and was unable to enroll in the courses
at the appropriate time. The rights set forth in this
Section are in addition to any rights afforded to persons in
military service with the State of Illinois pursuant to the
orders of the Governor under the policies of an Illinois
public university, college, or community college.
(20 ILCS 1805/Art. VII heading)
ARTICLE VII. SEPARATION THE RETIRED LIST
(20 ILCS 1805/33 rep.)
Section 10. The Military Code of Illinois is amended by
repealing Section 33.
Section 99. Effective date. This Act takes effect upon
becoming law.
Passed in the General Assembly May 07, 2002.
Approved July 24, 2002.
Effective July 24, 2002.
[ Top ]