Upon the timely application for reinstatement, did the employer promptly reinstate the service member to his/her escalator position? 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. Did you exceed the 5-year limit on periods of service? L. 107-188, provides that service as an intermittent disaster-response appointee upon activation of the National Disaster Medical System (NDMS) or as a participant in an authorized training program is deemed “service in the uniformed services.” 42 U.S.C. USERRA applies to members of the Armed Forces, Reserves, National Guard, and other “Uniformed Services” (including the National Disaster Medical System and the Commissioned Corps of the Public Health Service). An employer is not required to reemploy a person if the pre-service position was for a brief or non-recurrent period and there was no reasonable expectation that employment would continue indefinitely or for a significant period. Employers must provide refresher training, and any other training necessary to update a returning employee’s skills so that he or she has the ability to perform the essential tasks of the position. AND REEMPLOYMENT RIGHTS ACT. Learn more >>. USERRA also prohibits employers from discriminating against past and present … Emergency Management Agency (FEMA), the National Disaster Medical System (NDMS), and, as recently amended, the National Urban Search and Rescue System (NUSRS). Filing of complaints with VETS is optional; the employee may freely choose to pursue a claim with private counsel (Section 4322). Office of Special Counsel . Does USERRA give a person the right to benefits from the civilian employer during a period of NDMS training or service? (A) In the job the person would have held had the person remained continuously employed, or a position of like seniority status and pay so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer; Section 4313 (a) (2) (A), or. The employer is liable for funding any obligation of the plan to provide required benefits. Employers, regardless of size, are required to provide to persons entitled to the rights and benefits under USERRA, a notice of their rights, benefits and obligations. CAN AN EMPLOYER DISCRIMINATE BASED ON PAST OR PRESENT MILITARY SERVICE? The position may not necessarily be the same job the person previously held. .cd-main-content p, blockquote {margin-bottom:1em;} Intermittent employees of the National Disaster Medical System (NDMS) are also considered to be performing "service in the uniformed services" and protected by USERRA when activated to provide assistance in a public health emergency, to be present when there is a risk of a public health emergency, or when participating in authorized training. National Disaster Medical System (NDMS), including Federal Emergency Management Agency (FEMA), are intermittent federal employees, considered members of the ªuniformed servicesº for all purposes of USERRA . Except with respect to persons who have a disability incurred in or aggravated by military service, the position into which a person is reinstated is based on the length of a person’s military service. Please turn on JavaScript and try again. Where do I go for information or assistance? Please enable scripts and reload this page. Contact the Committee for Employer Support of the Guard and Reserve at (800) 336-4590 with specific questions regarding USERRA. Active duty (other than for training) by volunteers supporting “operational missions” for which Selected Reservists have been ordered to active duty without their consent – Section 4312 (c) (4) (C). Employers are also free to provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing the notice by e-mail). This guide is intended to be a non-technical resource for informational purposes only. The reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing because of an injury or illness incurred or aggravated during the performance of military service. 1. There is no small business or employer hardship exc ep-tion. Defined benefit plans, defined contribution plans, and profit-sharing plans that are retirement plans are covered. Although most often understood as applying to National Guard and reserve military personnel, USERRA also applies to persons serving in the active components of the Armed Forces. (generally, 38 USC 4312). Service performed during time of national emergency or for other critical homeland security missions/contingencies (for NDMS members) requirements. (Section 1161 (b) of Title 10.). (202) 690-7816 Did the employer grant the reemployed person pension plan benefits that accrued during military service? YOUR RIGHTS UNDER USERRA THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT USERRA protects the job rights of individuals who voluntarily or involun\ tarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. Section 4323 (d) (1) (C) / 20 CFR 1002.312. It looks like your browser does not have JavaScript enabled. NDMS members or their employers who experience problems resulting from employee participation in the NDMS, may request assistance from one of ESGR's ombudsmen. USERRA also protects anyone—veteran or non-veteran, service member or non-service member—from reprisal for either exercising rights or assisting in any proceeding under the Act. C. Comments Addressing the National Disaster Medical System The Department received several comments from an attorney employed by the Federal Emergency Management Agency (FEMA) regarding the rule’s treatment of the National Disaster Medical System (NDMS). If, prior to leaving for military service, an employee knowingly provides clear written notice of an intent not to return to work after military service, the employee waives entitlement to leave-of-absence rights and benefits not based on seniority. protected by USERRA includes National Guard members activated for state . If a person has been absent for military service for 91 or more days, an employer may delay treating the person as not having incurred a break in service for pension purposes until the person submits satisfactory documentation establishing reemployment eligibility. Section 4303, 13 & 16). 8. If a person does not provide satisfactory documentation because it is not readily available or does not exist, the employer still must promptly reemploy the person. Section 4317 / 20 CFR 1002.164 / 20 CFR 1002.166. .manual-search ul.usa-list li {max-width:100%;} But the employer can require the employee to report for the 6:00 a.m. shift the next morning. Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Health and Human Services, when activated for a public health emergency, and approved training to prepare for such service (added by Pub. USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. Pension plans (Section 4318), which are tied to seniority, are given separate, detailed treatment under the law. The escalator principle requires that each returning service member be reemployed in the position the person would have occupied with reasonable certainty if the person had remained continuously employed, with full seniority. 42 U.S.C. In order to qualify for protection, the service mem - ol{list-style-type: decimal;} The following three-part reemployment scheme is required for persons with disabilities incurred or aggravated while in military service. military personnel, USERRA also applies to persons serving in the active components of the Armed Forces and the National Disaster Medical System (NDMS). Section 300hh-11(e). How much time off is an employee entitled to prior to reporting for military/NDMS service? The reemployed person is entitled to any accrued benefits contingent upon employee contributions only to the extent that the person repays the employee contributions. An agency within the U.S. Department of Labor, 200 Constitution Ave NW 6. 12 . What if a returning NDMS member is disabled? Service members must, at their request, be permitted to use any vacation leave that had accrued before the beginning of their military service instead of unpaid leave. 4. The law authorizes VETS to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. However, a health plan is permitted to impose an exclusion or waiting period for coverage of disabilities determined by the Secretary of Veterans’ Affairs (VA) to be service-connected. Any election that you … Intermittent employees of the National Disaster Medical System (NDMS) are also considered to be performing "service in the uniformed services" and protected by USERRA when activated to provide assistance in a public health emergency, to be present when there is a risk of a public health emergency, or when participating in authorized training. Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States – Section 4312 (c) (4) (E). However, if, after reemploying the person, documentation becomes available that shows one or more of the reemployment requirements were not met, the employer may terminate the person and any rights or benefits that may have been granted. NDMSUSERRA@hhs.gov, Home  |  Contact Us  |  Accessibility  |  Privacy Policies  |  Disclaimer  |  HHS Viewers & Players |  HHS Plain Language, Assistant Secretary for Preparedness and Response (ASPR), 200 Independence Ave., SW, Washington, DC 20201, U.S. Department of Health and Human Services  |  USA.gov |  Ombudsmen provide information about rights and responsibilities under the law and seek a solution through mediation that can provide quick problem resolution. “Service in the Uniformed Services” and “Uniformed Services” Defined (38 U.S.C. A notice of intent not to return can waive only leave-of-absence rights and benefits. To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. Were you discharged under conditions other than disqualifying under section 4304? The Thomas P. O’Neill Federal Building Section 1002.59 recognizes coverage for persons designated by the President in time of war or national emergency. Absence from work for an examination to determine a person’s fitness for any of the above types of duty, Funeral honors duty performed by National Guard or Reserve members. “USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. 5. Disabilities Incurred or Aggravated While in Military Service. The University will comply with all provisions of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). (See 20 CFR Part 1002, 70FR75246, Dec. 19, 2005.). They may do so if they have chosen not to file a complaint with VETS, have chosen not to request that VETS refer their complaint to the Attorney General, or have been refused representation by the Attorney General. If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible after the expiration of the 8-hour period. Persons ordered to involuntary active duty for operational missions would be covered by the fourth exemption. For example, since September 11, 2001, Reservists were involuntarily called to active duty under Federal orders for Operations Noble Eagle, Enduring Freedom and Iraqi Freedom. 4. 5. Office of Special Counsel . 12 . This is not a publication of the U.S. Department of Labor. Section 4318 (a) (2) (A) / 20 CFR 1002.259. Did the employer allow the service member a leave of absence? USERRA Notice. 1. For example, the five-year limit will not be applied to members of the Navy or Marine Corps whose obligated service dates expire while they are at sea. If you need more specific information on NDMS issues involving USERRA, contact: National Disaster Medical System USERRA Ombudsman US Department of Health and Human Services The Thomas P. O’Neill Federal Building 200 C Street, SW Washington, DC 20024 ATTN: Joe Lamoureux 202-260-0293 NDMSUSERRA@hhs.gov. USERRA Protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. Section 4312 (e) (2) (A) / 20 CFR 1002.116. Additionally, Reservists and retirees (who were not called) volunteered for active duty. could fill vacant positions on the various response teams within NDMS. National Disaster Medical System, it should be noted that Active component members, Public Health Service Commissioned Corps members, and certain others are also protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA), if they meet the eligibility criteria. USERRA also prohibits employers from 20 CFR 1002.5 What definitions apply to USERRA? USERRA applies to virtually all employers, regardless of size, including the Federal Government. Section 4311(a). Individuals have the option to privately file court actions. Consequently, during their period of service they are entitled to participate in any rights and benefits not based on seniority that are available to employees on comparable nonmilitary leaves of absence, whether paid or unpaid. REEMPLOYMENT RIGHTS. If the employee cannot become qualified for either position described in (A) or (B) above: in any other position that most nearly approximates the above positions (in that order) that the employee is qualified to perform with full seniority. If an individual’s past, present, or future connection with the service is a motivating factor in an employer’s adverse employment action against that individual, the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of the individual’s connection with the service. USERRA a pplies to members of the Armed Forces, Reserves, National Guard, and other “Uniformed Services” (including the National Disaster Medical System and … 8. (USERRA) A.R.S. Who has the burden of proof in USERRA discrimination cases? USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services. How can they get assistance from an ombudsmen? With the publication of the American Journal of Disaster Medicine, for the first time, ... National Disaster Medical System, the journal will be interdisciplinary and have a national and international focus in view of the global threats of today's complex disasters. The .gov means it’s official. State or local government call ups? While the information presented herein applies primarily to private employers, there are parallel provisions in the statute that apply to Federal, State and Local Government employers. Prompt reinstatement (generally a matter of days, not weeks, but will depend on the length of absence). 7. Service from which a person, through no fault of the person, is unable to obtain a release within the five-year limit – Section 4312 (c) (2). 3. The employer must make reasonable efforts to accommodate a person’s disability so that the person can perform the duties of the reemployment position. WHO IS COVERED An employee or applicant for employment with the: Most types of service will be counted in the computation of the five-year period. For example, in late August, the NDMS deployed a San Diego-based Disaster Medical Assistance Team to assist with the Hurricane Harvey emergency response in Texas. Employers are also prohibited from discriminating on the basis of service in the military, the National Disaster Medical System, and the commissioned corps of the Public Health Service. National Guard members (and National Disaster Medical System reservists) are protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA). No court fees or costs may be charged to anyone who brings suit. Is the returning employee always entitled to have the same job back? protected by USERRA includes National Guard members activated for state . USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services. 11. The National Committee for Employer Support of the Guard and Reserve (ESGR) is a Department of Defense agency that provides free USERRA education, consultation and, if necessary, informal mediation services. If there is a variation in benefits among different types of nonmilitary leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable. (generally, Section 4313). An application for reemployment must be submitted to the employer no later than 14 days after completion of a person’s service. Dropping an individual from the rolls when the individual has been absent without authority for more than three months or is imprisoned by a civilian court. An employer must not deny initial employment, reemployment, retention in employment, promotion or A person whose military service lasted 1 to 90 days must be “promptly reemployed” in the following order of priority: 1. Service by members who are ordered to active duty in support of a “critical mission or requirement” of the uniformed services as determined by the Secretary involved – Section 4312 (c) (4) (D). 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). I provide a pay differential for my employees who are activated National Guard and Reserve members, if they make less on Reserve or Guard duty than they make working for our organization. USERRA and the Iowa Code section also applies to members of the National Disaster Medical System (NDMS), organized under the Federal Department of Health and Human Services, who volunteer intermittently when activated as Federal employees, to provide medically-related assistance to victims of public health emergencies or when participating in authorized training. Section 4313 (b) (1) & (2) (A) / 20 CFR 1002.199. Did the employer in any way discriminate in employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of past or present membership, performance of service, application for service or obligation for military service? VETS interprets and provides guidance on USERRA, and investigates complaints filed under this law. Employers are prohibited from retaliating against anyone (whether or not they have performed military service) who: whether or not the person has performed military service. (Section 1161 (a) of Title 10. Exceptions – Eight categories of service are exempt from the five-year limitation. Section 4313 (a) (4). (B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status, and pay the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person. 2. If two or more persons are entitled to reemployment in the same position, the following procedure applies: Employer defenses to reemployment are affirmative ones and the employer carries the burden of proving them by a preponderance of the evidence. USERRA affects employment, reemployment, and retention in employment, when employees serve in the uniformed Services. USERRA also protects workers at foreign offices of American companies and American offices of foreign companies, where USERRA doesn’t conflict with the foreign country’s laws. Subject to the rules and exceptions discussed below, USERRA guarantees an employee returning from military service or training the right to be reemployed at his or her former job (or as nearly comparable a job as possible) with the same benefits. Employers must make reasonable efforts to qualify a returning service member for the reemployment position. DMATs are part of the National Disaster Medical System and operate under the Department of Health and Human Services (DHHS). The U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) administers the Uniformed Services Employment and Reemployment Rights Act (USERRA). (USERRA) A.R.S. The Secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement. This period will apply regardless of the length of the person’s absence. Such operational missions involve circumstances other than war or national emergency for which, under presidential authorization, members of the Selected Reserve may be involuntarily ordered to active duty under Title 10, U.S.C. (38 USC 4312). During an emergency, NDMS issues official orders to deploy individuals to areas in need of relief. Such a position may be a higher or lower position, depending on the circumstances. The person cannot be required to pay more than 102 percent of the full premium for the coverage. Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed. What is an employer required to provide to a returning NDMS member upon reemployment? It cannot surrender other rights and benefits that a person would be entitled to under the law, particularly reemployment rights after service. In the event a person’s coverage under a health plan was terminated because of military service, a waiting period or exclusion cannot be imposed upon reinstatement of health coverage of the reemployed service member or any eligible dependents if one would not have been imposed had the person not been absent for military service. Federal patient movement is a … USERRA applies to members of the Armed Services, Reserves, National Guard, and other “Uniformed Services,” including the National Disaster Medical System and the Commissioned Corps of the Public Health Service. All of the undefined words used in this USERRA notice have the meanings assigned to them in the attached EXTENDED COVERAGE Election Notice. VETS investigates complaints and attempts to resolve them. 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. The two-week annual training sessions and monthly weekend drills mandated by statute for Reservists and National Guard members are not counted toward the five-year limitation. Definitions: "National Disaster Medical System (NDMS)" means the federally coordinated system that USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services. If no allocation or cost-sharing arrangement is provided, the full liability to make the retroactive contributions to the plan will be allocated to the last employer employing the person before the period of military service or, if that employer is no longer functional, to the overall plan. 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