No. The Uniformed Services Employment and Reemployment Rights Act (USERRA),
as codified at Title 38, U.S. Code, as amended by Title 42, U.S. Code
section 300hh-11(e), provides that NDMS members are intermittent federal
employees considered members of the “uniformed services” for all purposes of
USERRA. Under USERRA, if a member of the uniformed services, including an
NDMS member, provides the employer with advance notice, when practical, of
federal activation on behalf of NDMS, even if such activation is voluntary
service, the employer must allow the employee leave of absence and reinstate
them to their prior employment (or equivalent employment) upon the
employee’s request. There is no small business or employer hardship
exception to federal deployment/activation. (38 USC 4312).
Yes. Since 1940, there has been such a law, known as the Veterans'
Reemployment Rights Act (VRRA). On October 13, 1994, President Clinton
signed the Uniformed Services Employment and Reemployment Rights Act – a
comprehensive revision of the VRRA, USERRA became fully effective December
12, 1994, and is contained in Title 38, United States Code, at chapter 43.
(Sections 4301 through 4333). NDMS members received USERRA protections in
2002, by Act of Congress, codified at 42 U.S. Code § 300hh-11(e), Pub. L.
107-188, Section 102(a), June 12, 2002. (42 USC 300hh-11(e)) as amended.
The individual must meet five conditions, or “eligibility criteria.” The
individual:
- must hold or have applied for a civilian job. (Note: Jobs employers can
show to be held for a brief, nonrecurring period with no reasonable
expectation of continuing for a significant period do not qualify for
protection).
- must have given written or verbal notice to the civilian employer prior
to leaving the job for military/NDMS training or service except when
precluded by military/NDMS necessity.
- must not have exceeded the 5-year cumulative limit on periods of active
Federal service.
- must have been released from service under conditions other than
dishonorable for military reservists and Guard, and must not have been
terminated for misconduct while serving on a Federal status, if an NDMS
member.
- must report back to the civilian job in a timely manner or submit a
timely application for reemployment. (generally, 38 USC 4312)
USERRA applies to voluntary as well as involuntary NDMS service, in peacetime
as well as wartime. However, like the VRR law, USERRA does not apply to
state or local government call ups of the NDMS teams/personnel for disaster
relief, riots, etc. (38 USC 4303)
The person who is performing the service (or an official representative of
NDMS) must give advance written or verbal notice to the employer. The notice
requirement applies to all categories of training or service. Notice is not
required if precluded by NDMS necessity or, if the giving of such notice is
otherwise impossible or unreasonable under the circumstances. A
determination of NDMS necessity shall be made pursuant to regulations
prescribed by the Department of Defense or HHS for NDMS personnel. It is
reasonable to expect that situations where notice is not required will be
rare. The law does not specify how much advance notice is required, but the
Department of Defense and Department of Health and Human Services advise
NDMS members that they should provide their employers with as much advance
notice as possible under the circumstances. (38 USC 4312)
Yes. USERRA provides that following periods of Federal NDMS service of 31
consecutive days or more, the returning employee must, upon the
employer's request, provide documentation that establishes length and
character of the service and the timeliness of the application for
reemployment. Reemployment may not be delayed, however, if such
documentation does not exist or is not readily available. In general, the
following documents have been determined by the Secretary of Labor to
satisfy proof of eligibility for reemployment: discharge papers, leave and
earnings statements, school completion certificate, endorsed orders, or a
letter from a proper NDMS authority. While USERRA does not address
documentation of shorter periods of NDMS service, if doubt exists, an
employer could contact the HHS/NDMS ombudsman about verification of a
specific period of NDMS service. (38 USC 4312)
Service in the uniformed services, except the types of service described
below, counts toward the cumulative 5-year limit of active Federal NDMS
service a person can perform while retaining rights under USERRA. When a
person starts a new job with a new employer, he or she receives a fresh
5-year entitlement. Duty performed prior to the effective date of USERRA is
addressed in question #8. USERRA's cumulative 5-year limit does not
include certain kinds of NDMS training or service. Exceptions to the 5-year
limit can be grouped into three broad categories:
- Unable (through no fault of the individual) to obtain release from
service or service in excess of five years to fulfill an initial period
of obligated service (generally imposed on Active military component
aviators or others who undergo extensive initial training in certain
technical military specialties).
- Required NDMS training courses and other training duty certified by NDMS
or NDMS’s Federal partner agencies (the U.S. Department of Veterans’
Affairs, the U.S. Department of Homeland Security, and the U.S.
Department of Defense) to be necessary for professional development or
skill training/retraining. 42 U.S.C. Section 300hh-11(e).
- Service performed during time of national emergency or for other
critical homeland security missions/contingencies (for NDMS members)
requirements. Involuntary service of this type is exempt from the 5-year
limit. NDMS voluntary service in support of a critical homeland security
missions or contingencies is also exempt. (38 USC 4312)
No. As under the VRRA law, a person may not be forced to use earned vacation.
Employees are entitled to earned vacation or leave in addition to time off
to perform NDMS service. A rare exception would be a case where there is a
standard plant shutdown at a certain time of year and all employees must
take their vacations during that period and an employee's period of NDMS
service happens to coincide with that period. (38 USC 4316).
Not necessarily. USERRA provides that military or NDMS service performed
prior to December 12, 1994, will count toward the USERRA 5-year limit if it
counted against the limits contained in the old law. (transition rules—not
codified)
Although an exact amount of time is not specified in USERRA, an employee, at
a minimum, needs to be given sufficient time to travel to the place where
the NDMS duty is to be performed.
No. USERRA does not address the issue of pay differentials. This is an
employer decision to provide a pay differential to support employees
activated with the military Reserve and Guard forces or NDMS response
disaster forces. If you provide such a pay differential for your military
Reserve and Guard employees, you may want to consider providing a similar
pay differential for your NDMS employees who provide valuable medical
services to disaster victims. Of recent, there are states that have enacted
legislation giving similar pay differential and/or parity to NDMS as is
received by military and reservist. If the employer is not sure of any
current legislation they can contact the HHS/NDMS ombudsman for guidance.
For periods of NDMS service of up to 30 consecutive days, the person must
report back to work for the first full regularly scheduled work period on
the first full calendar day following the completion of the period of
service and safe transportation home, plus an 8-hour period for rest. If
reporting back within this deadline is "impossible or
unreasonable" through no fault of the employee, he or she must report
back as soon as possible after the expiration of the 8-hour period. After a
period of service of 31-180 days, the person must submit a written or verbal
application for reemployment with the employer not later than 14 days after
the completion of the period of service. If submitting the application
within 14 days is impossible or unreasonable through no fault of the
employee, he or she must submit the application as soon as possible
thereafter. After a period of service of 181 days or more, the person must
submit an application for reemployment not later than 90 days after
completion of the period of service. These deadlines to report to work or
apply for reemployment can be extended up to two years to accommodate a
period during which a person was hospitalized for or convalescing from an
injury or illness that occurred or was aggravated during a period of
military/NDMS service. (38 USC 4312) In either case, the person does not
automatically forfeit the right to reemployment, but will 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." (38 USC 4312).
Yes. USERRA gives an employee the right to elect continued employer health
insurance coverage, for himself or herself and his or her dependents, during
periods of NDMS service. For periods of up to 30 days of training or
service, the employer can require the person to pay only the normal employee
share, if any, of the cost of such coverage. For longer tours, the employer
is permitted to charge the person up to 102 percent of the entire premium.
If the employee elects coverage, the right to that coverage ends on the day
after the deadline for him or her to apply for reemployment or 18 months
after the absence from the civilian job began, whichever comes first.
USERRA gives an employee and previously covered dependents the right to
immediate reinstatement of civilian health insurance coverage upon return to
the civilian job. The health plan cannot impose a waiting period and cannot
exclude the returning employee based on preexisting conditions (other than
for those conditions determined by the Federal government to be
service-connected). This right is not contingent on an election to continue
coverage during the period of service. (38 USC 4317)
To the extent that an employer offers other non-seniority benefits (e.g.,
holiday pay or life insurance coverage) to employees on furlough or a leave
of absence, the employer is required to provide those same benefits to an
employee during a period of service in the uniformed services. If the
employer's treatment of persons on leaves of absence varies according to
the kind of leave (e.g., jury duty, educational, etc.), the comparison
should be made with the employer's most generous form of leave. Of
course, you must compare periods of comparable length. An employee may waive
his or her rights to these other non-seniority benefits by knowingly
stating, in writing, his or her intent not to return to work. However, such
statement does not waive any other rights provided by USERRA. (38 USC 4316)
There are four basic entitlements (if the eligibility criteria in answer #2
are met):
- Prompt reinstatement (generally a matter of days, not weeks, but will
depend on the length of absence).
- Accrued seniority, as if continuously employed. This applies to rights
and benefits determined by seniority as well. This includes status, rate
of pay, pension vesting, and credit for the period for pension benefit
computations.
- Training or retraining and other accommodations. This would be
particularly applicable in case of a long period of absence or
service-connected disability.
- Special protection against discharge, except for cause. The period of
this protection is 180 days following periods of service of 31-180 days.
For periods of service of 181 days or more, it is one year. (generally,
Section 4313)
No. USERRA provides that, if the period of service was less than
91consecutive days, the person is entitled to the job he or she would have
attained absent the NDMS service, provided the person is, or can become,
qualified for that job. If unable to become qualified for a new job after
reasonable efforts by the employer, the person is entitled to the job he or
she left.
For periods of service of 91 days or more, the employer may reemploy the
returning employee as above (i.e., position that would have been attained or
position left), or in a position of "like seniority, status and
pay" the duties which the person is qualified to perform. (38 USC 4313)
If a person has been gone from the civilian job for months or years, civilian
job skills may have been dulled by a long period without use. A person must
be (or become) qualified to do the job to have reemployment rights, but
USERRA requires the employer to make "reasonable efforts" to
qualify that person. "Reasonable efforts" means actions, including
training, that don't cause undue hardship to the employer. If a person
can't become qualified in the positions described in #13 after
reasonable efforts by the employer, and if not disabled, the person must be
employed in any other position of lesser status and pay, which he or she is
qualified to perform, with full seniority. (38 USC 4313)
USERRA also requires the employer to make "reasonable efforts" to
accommodate persons with a disability incurred or aggravated during NDMS
service. If a person returns from NDMS service and is suffering from a
disability that cannot be accommodated by reasonable employer efforts, the
employer is to reemploy the person in some other position he or she is
qualified to perform and which is the "nearest approximation" of
the position to which the person is otherwise entitled, in terms of status
and pay, with full seniority. A disability need not be permanent to confer
rights under USERRA. For example, if a person breaks a leg during NDMS
training or deployment, the employer may have an obligation to make
reasonable efforts to accommodate the broken leg, or to place the person in
another position, until the leg has healed. (Section 4313)
Section 4311(a) of USERRA provides as follows:
A person who is a member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform service in
the uniformed services [including NDMS] shall not be denied initial
employment, reemployment, retention in employment, promotion, or any benefit
of employment by an employer on the basis of that membership, application
for membership, performance of service, application for service, or
obligation.
Section 4311(c)(1) further provides:
An employer may not discriminate in employment against or take any adverse
employment action against any person because such person has taken an action
to enforce a protection afforded any person under this chapter, has
testified or otherwise made a statement in or in connection with any
proceeding under this chapter, has assisted or otherwise participated in an
investigation under this chapter, or has exercised a right provided for in
this chapter. These two provisions provide a very broad protection against
employer discrimination, much broader than the VRRA law provided. The second
provision prohibits, for the first time, reprisals against any person,
without regard to NDMS connection, who testifies or otherwise assists in an
investigation or other proceeding under USERRA. (38 USC 4311)
The employer or prospective employer. USERRA provides that a denial of
employment or an adverse action taken by an employer will be unlawful if a
service connection was a motivating factor (not necessarily the only factor)
in the denial or adverse action "unless the employer can prove that the
action would have been taken in the absence of such membership, application
for membership or obligation.” (38 USC 4311)
Employers should contact the NDMS Ombudsman. You can contact an NDMS
Ombudsman at
ndmsuserra@hhs.gov. Ombudsmen
are trained to provide information and informal mediation services
concerning civilian job rights of NDMS, National Guard and Reserve members.
As mediators, they act as neutrals, with a goal of helping bring about
solutions to conflicts that are legal to each of the parties.
Sometimes, employers are particularly inconvenienced by the timing of
proposed NDMS duty or training by an employee-NDMS member. For example, a
scheduled NDMS training session by a "key" employee may disrupt a
major project, special product promotion, annual inventory, etc. In such
cases, NDMS Ombudsman suggests employers contact the NDMS Team Leader
involved to seek relief from the impending hardship. Experience has shown
that NDMS team leaders are sensitive to employer concerns and can often
assist, when homeland security requirements permit, by rescheduling the
proposed NDMS duty or training or assigning someone else to perform it.
NDMS members or their employers who experience problems resulting from
employee participation in the NDMS, may request assistance from one of NDMS
Ombudsman. Ombudsmen provide information about rights and responsibilities
under the law and seek a solution through mediation that can provide quick
problem resolution. This service (whether local or national) is informal;
discussions are not entered into personnel records. The objective is to
eliminate misunderstandings and resolve difficulties to the satisfaction of
all. The first attempt to resolve a problem should be made at the
employer-employee level in an atmosphere of mutual cooperation. If that
fails, NDMS team leaders should be consulted. Team leaders have a vested
interest in the problem and may be able to explain the situation or suggest
compromises that will satisfy everyone's needs. If those efforts fail,
e-mail us at the address below and we'll put you in touch with an
ombudsman who is qualified to help and is sympathetic to the needs of both
employers and employees. As with all communications, you should provide full
details of the problem, mailing and email addresses, and a telephone number
where you can be reached.
Please note: Cases that require legal advice or assistance are referred to
the United States Department of Labor Veterans Employment Training Service
(DOL-VETS).
If you need more specific information on NDMS issues involving USERRA,
contact:
National Disaster Medical System
NDMS Ombudsman
ATTN: Joe
Lamoureux
(202) 573-5619
ndmsuserra@hhs.gov
AND/OR
ATTN: Kirsten Sorensen
(202)
510-2341
ndmsuserra@hhs.gov
