Military service.

San José Municipal Code § 3.49.046

in effect

3.49.046 - Military service. A. Notwithstanding any provisions of this plan to the contrary, contributions, benefits, and service credit with respect to qualified military service shall be provided in accordance with the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") [as codified at 38 U.S.C. Chapter 43]; Internal Revenue Code Section 414(u); and, effective January 1, 2007, Internal Revenue Code Section 401(a)(37), as amended from time to time. For purposes of this section, "qualified military service" means any service in the uniformed services as defined in USERRA by any individual if such individual is entitled to reemployment rights under USERRA with respect to such service. A participant whose employment is interrupted by qualified military service under Internal Revenue Code Section 414(u) or who is on a leave of absence for qualified military service under Internal Revenue Code Section 414(u) may elect to make up contributions upon timely resumption of employment with the city in accordance with USERRA, subject to the following: 1. The make-up contributions shall not exceed the maximum contributions the participant would have made during the period of qualified military service if the participant's employment with the city had continued at the same level of compensation without the interruption or leave of absence, reduced by the contributions, if any, actually made during the taxable year(s) in which the qualified military service occurred. 2. The right to make-up contributions is limited to the five-year period immediately following the resumption of employment with the city or, if sooner, the period immediately following the resumption of employment that is equal to three times the length of the interruption or leave of absence. 3. If the participant makes-up contributions, then the city shall make-up the related city contributions which would have been required had such contributions actually been made during the period of qualified military service. The make-up contributions by the city shall be made as soon as practicable after the participant makes such make-up contributions. 4. If participant timely resumes employment in accordance with USERRA after a qualified military leave, the city shall make any other city contribution that would have been made if the participant had remained employed during the participant's qualified military service. Such contributions must be made no later than ninety days after the date of such reemployment or when contributions are normally due for the year in which the qualified military service was performed, if later. 5. In determining the amount of employer contribution, a participant shall be treated as receiving compensation from the participating employer during such period of qualified military service equal to: (i) the compensation the participant would have received during such period if the participant was not in qualified military service, determined based on the rate of pay the participant would have received from the participating employer but for the absence during the period of qualified military service; or (ii) if the compensation the participant would have received during such period is not reasonably certain, the participant's average compensation from the participating employer during the twelve- month period immediately preceding the qualified military service (or, if shorter, the period of employment immediately preceding the qualified military service). B. Effective January 1, 2007, to the extent provided under Internal Revenue Code Section 401(a)(37), in the case of a participant whose employment is interrupted by qualified military service and who dies while performing qualified military service, the survivor of such participant shall be entitled to any additional benefit (other than benefit accruals) provided under the plan as if the participant timely resumed employment in accordance with USERRA and then, on the next day, terminated employment on account of death. C. A participant whose employment is interrupted by qualified military service or who is on a leave of absence for qualified military service and who receives a differential wage payment within the meaning of Internal Revenue Code Section 414(u)(12)(D) from the city, shall be treated as a participant who is making employee contributions and the differential wage payment shall be treated as compensation under Section 3.49.030F. This provision shall be applied to all similarly situated individuals in a reasonably equivalent manner. (Ord. 29184.)

Source: City of San José, Municipal Code (Municode Library, library.municode.com)URL: https://library.municode.com/ca/san_jose/codes/code_of_ordinances?nodeId=TIT3PE_IIREPL_CH3.49UNMADECO401PL_3.49.046MISEFetched: 11/1/2026