Time spent on unpaid military leave does not count as time worked toward completing a probationary period (either initial probation or promotional probation). In other words, if an employee who has served three months of a six-month probationary period goes out on unpaid military leave, s/he would have to complete the remaining three months of probation when s/he returns from military service.
Included in this discussion is the State law that prohibits an employee from receiving a merit increase while on probation [5 MRSA, § 7065, sub-§ 3] and the State law that requires a probationary period of at least six months upon probation. [5 MRSA, § 7051, sub-§ 5]
In this situation, the Civil Service Law, Civil Service Rules, and the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) mesh quite well. The USERRA is designed to protect the employment rights of returning service members. Quoting from the U.S. DOL’s A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act [April 2005], the federal law provides that: “. . . each returning service member actually step back onto the seniority ‘escalator’ at the point the person would have occupied if the person had remained continuously employed.” (This is the long-standing "escalator" principle.)
It is equally important to note that the USERRA does not undermine the integrity of the employer’s probationary period. In enforcing the USERRA, the U.S. DOL requires that it be a bona fide probationary period, involving “special observation” and a true “evaluation” of performance – that it be more than simply a “lapse of time” or “waiting period”.
The objective of the probationary period in the State Service clearly meets the U.S. DOL standard: “The probationary period shall be regarded as an integral part of the examination process, and shall be utilized for closely observing the employee's work, for securing the most effective adjustment of a new employee to his/her position, and for rejecting any employee whose performance does not meet the required work standards.” [CSR, Chapter 9, Section 1] The probationary period for most State employees is generally six months, which may be extended to twelve months. [CSR, Chapter 9, Section 2]
With respect to probation for returning veterans, the guiding principal is that the returning service member be made whole after satisfying the employer’s probationary requirement. Hence, when a probationary employee (either initial or promotional) returns from military leave, s/he should be placed at the salary step that was in place at the time the military leave started, and continue probation. Upon successful completion of the probationary period, the service member must be made whole. That is, the service member must be placed at the step s/he would have been at had s/he not been on military leave – and – receive a retroactive salary adjustment to the date s/he returned from military leave. Also, the end of probation date should be adjusted to reflect the date the employee would have come off probation had the employee not been on military leave.