|Subchapter 4630 - Absence and Leave
Section H - Absences to Perform Duty with the Uniformed Services
Subsection a - Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)
|Purpose||The purpose of this Subsection is to provide guidance on the rights and entitlements of employees under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994, only as it relates to absence s to perform duty in the uniformed services. Questions regarding employment, reemployment, restoration rights, and benefits coverage during and after such military duty, should be referred to your servicing personnel office.|
|Overview of USERRA||
Public Law 103-353 revised and restructured the Veteran's Reemployment Rights Law (Chapter 43 of Title 38, U.S. Code), governing the restoration rights of employees who perform military duty. In general, with regard to the impact of this law on absence and leave entitlements, USERRA:
All employees who enter the uniformed services are covered by the provisions of USERRA. This coverage is in addition to the military leave entitlements of 5 U.S.C. 6323.
Note: Any employee under a time-limited appointment who enters the uniformed service is entitled to complete any unexpired portion of the appointment upon his/her return.
Example: An employee is hired on a temporary appointment effective October 1, 1996, with a not-to-exceed date of September 30, 1997. On February 10, 1997, his/her reserve unit is mobilized for active duty by the Secretary of Defense to assist in an international crisis. The employee returns to work on July 1, 1997, and will work through September 30, 1997, the remaining unexpired period of the temporary appointment.
| What is
Military duty in the uniformed services includes:
The cumulative time an employee may be absent from work for military duty and retain reemployment rights is 5 years. For additional information, see 5 CFR 353.203. Exceptions to the 5-year limit are:
Restoration rights are based on the duration of the military service rather than the type of military duty performed.
| Advance Notice
When applying for absence to perform duty with the uniformed service, the employee (or an appropriate officer of the applicable service) must give the supervisor advance written or verbal notice. This notice and a copy of the military order should be provided as early as possible.
Exception: No notice is required if it is precluded by military necessity or, under all relevant circumstances, giving notice is impossible or unreasonable.
Because the employee has an obligation to both the military and to his/her employer, conflict with job demands is sometimes unavoidable. A good-faith effort on the part of both the employee and the agency is needed to minimize conflict and resolve differences, and may require some accommodation by both parties.
Most reserve members are required, as a minimum, to participate in drills 2 days each month and in active duty training 2 weeks per year. Some members are required to participate in longer or more frequent training tours. By law, members of the Selected Reserve (a component of the Ready Reserve), can be called up under a Presidential Order for purposes other than training for as long as 270 days. If the President declares a national emergency, the remainder of the Ready Reserve - the Individual Ready Reserve and the Inactive National Guard - may be called up. The Ready Reserve as a whole is subject to as much as 24 consecutive months of active duty in a national emergency declared by the President.
There is no limit to the frequency, duration, timing, and nature of the duty as long as the employee has provided proper notice and does not exceed the time limits for returning to duty as provided under USERRA.
| Contacting the
When a conflict arises between the military duty and the legitimate needs of the program, the supervisor may contact the commander of the employee's military unit to determine if the military duty can be rescheduled or performed by another member. Such contact is proper when:
| Approval of
|If the military authorities determine that the duty is necessary and cannot be rescheduled or canceled, the supervisor must approve the employee's request.|
In addition to providing proper notice and not exceeding the specified time limits allowed by law and regulation, the employee is also expected to:
|Return to Duty from Uniformed Service||The length of time an employee has to report back for duty following uniformed service is determined by how long he/she has been gone.
The agency may not deny reemployment rights to an employee who does not return to duty when required, but may treat the failure to report as it would any other unexcused absence.
|Timing of Restoration by Agency||An employee returning from the uniformed services following an absence of more than 30 days is entitled to be restored as soon as possible after making application. In no event will such restoration be later than 30 days after the agency receives his/her application. For information on the position to which an employee has restoration rights refer to 5 CFR 353.207.|
|Documentation Upon Return||Upon request, a returning employee who was absent for more than 30 days must provide the agency with documentation that establishes the timeliness of the application for reemployment, and length and character of service. If documentation is unavailable, the agency must restore the employee until documentation becomes available. If the employee fails to provide the requested documentation, contact your servicing ERS.|
|Notification of Rights and Obligations||
Agency - When an agency grants a leave of absence, separates, restores, or fails to restore an employee because of uniformed service, it will notify the employee of his/her rights, obligations, and benefits relating to Government employment, including any appeal and grievance rights.
Employee - Regardless of notification, an employee is still required to exercise due diligence in ascertaining his/her rights, and to seek reemployment within the time limits provided by Chapter 43 of Title 38, U.S. Code, for restoration after uniformed service.
|Personnel Actions During Employee Absence||An employee is to be carried on LWOP unless he/she elects to use other leave. If the employee willingly elects to resign, he/she will be separated from the agency.|
|Service Credit for Leave Rate Accrual||Upon reemployment, employees receive credit for the entire period of absence for purposes of leave rate accrual. However, employees will not earn annual or sick leave for each increment of 80 hours in a nonpay status or while off the rolls.|
| Use of Paid Leave During Uniformed Service
||Employees performing service with the uniformed services must be permitted, upon request, to use any accrued annual leave, earned compensatory time off for travel (CTOT), or sick leave, if appropriate, or military leave during such service, Under 5 U.S.C. 6323(a), military leave may be used for inactive duty (e.g., drills). (See Federal Register Volume 72, Number 50, dated March 15, 2007.)|
| Lump Sum Payments
Employees who enter into active military duty may choose:
(See Federal Register Volume 72, Number 50, dated March 15, 2007.)
|Discrimination and Acts of Reprisal Prohibited||A person may not be denied hiring, retention in employment, or any other incident or advantage of employment because of any application, membership, or service in the uniformed services. An agency may not take any reprisal against employees for taking any action to enforce a protection, assist or participate in an investigation, or exercise any right provided for under Chapter 43 of Title 38, U.S. Code.|
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